EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into
as of _____________, 2004 (the "Effective Date") by and between STENTOR, INC., a
Delaware corporation (the "Company"), and [_________] (the "Indemnitee").
WHEREAS, the Company believes it is essential to retain and attract
qualified directors and officers and ensure their willingness to serve on
committees of the board of directors of the Company (the "Board");
WHEREAS, the Indemnitee is a director and/or officer of the Company and/or
member of one or more committees of the Board;
WHEREAS, both the Company and the Indemnitee recognize the increased risk
of litigation and other claims being asserted against or involving directors and
officers and audit committees of companies;
WHEREAS, the Company's Fourth Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") and Bylaws (the "Bylaws")
require the Company to indemnify and advance expenses to its directors and
officers to the fullest extent permitted by the DGCL (as hereinafter defined)
and the CGCL;
WHEREAS, the Indemnitee has been serving and intends to continue serving
as a director and/or officer and/or member of one or more committees of the
Board in part in reliance on the Certificate of Incorporation and Bylaws; and
WHEREAS, in recognition of the Indemnitee's need for (i) substantial
protection against personal liability based on the Indemnitee's reliance on the
Certificate of Incorporation and Bylaws, (ii) specific contractual assurance
that the protection promised by the Certificate of Incorporation and Bylaws will
be available to the Indemnitee, regardless of, among other things, any amendment
to or revocation of the Bylaws or any change in the composition of the Board or
acquisition transaction relating to the Company, and (iii) an inducement to
continue to provide effective services to the Company as a director and/or
officer thereof, the Company wishes to provide for the indemnification of the
Indemnitee and to advance expenses to the Indemnitee to the fullest extent
permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained by the Company, to provide for the continued coverage of
the Indemnitee under the Company's directors' and officers' liability insurance
policies; and
NOW, THEREFORE, in consideration of the premises contained herein and of
the Indemnitee continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. CERTAIN DEFINITIONS.
(a) "CGCL" shall mean the General Corporation Law of the State of
California, as the same exists or may hereafter be amended or interpreted;
provided, however, that in the case of any such amendment or interpretation,
only to the extent that such amendment or
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interpretation permits the Company to provide indemnification rights more
favorable to the indemnified persons than were permitted prior thereto.
(b) 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 Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Exchange Act"), other than (a) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company; or
(b) 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;
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board and any new director
whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors then
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 of the full Board; 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 which 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, in one transaction or a series of
transactions, of all or substantially all of the Company's assets.
(c) "DGCL" shall mean the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended or interpreted;
provided, however, that in the case of any such amendment or interpretation,
only to the extent that such amendment or interpretation permits the Company to
provide indemnification rights more favorable to the indemnified persons than
were permitted prior thereto.
(d) "Expense" shall mean attorneys' fees and all other costs,
expenses and obligations paid or incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing for any of the foregoing, any Proceeding relating to any Indemnifiable
Event or enforcing any right under this Agreement or the Certificate of
Incorporation or Bylaws.
(e) "Indemnifiable Event" shall mean any event or occurrence that
takes place either prior to or after the execution of this Agreement, related to
the fact that the Indemnitee is or was a director or officer of the Company or
member of a committee of the Board, or is or was serving at the request of the
Company as a director, officer, employee, or agent of another corporation,
limited liability company, partnership, joint venture, trust, or other
enterprise, or as a limited liability company member or manager, as a partner of
a partnership or as trustee of a
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trust, including service with respect to employee benefit plans, or by reason of
anything done or not done by the Indemnitee in any such capacity.
(f) "Proceeding" shall mean any threatened, pending or completed
action, suit, investigation or proceeding, and any appeal thereof, whether
civil, criminal, administrative or investigative and/or any inquiry or
investigation, whether conducted by the Company or any other party, that the
Indemnitee in good faith believes might lead to the institution of any such
action.
(g) "Reviewing Party" shall mean any appropriate person or body
consisting of a member or members of the Company's Board or any other person or
body appointed by the Board (including the special independent counsel referred
to in Section 6) who is not a party to the particular Proceeding with respect to
which the Indemnitee is seeking indemnification.
(h) "Voting Securities" shall mean any securities of the Company
that vote generally in the election of directors.
2. INDEMNIFICATION. In the event the Indemnitee was, is, or may become a
party to or was, is, or may become involved (as a party, witness, or otherwise)
in any Proceeding by reason of (or arising in part out of) an Indemnifiable
Event, whether the basis of the Proceeding is the Indemnitee's alleged action in
an official capacity as a director or officer or in any other capacity (or in
any other capacity referred to in the definition of Indemnifiable Event) while
serving as a director or officer or in any other capacity, the Company shall
indemnify the Indemnitee to the fullest extent permitted by the DGCL against any
and all Expenses, liability, and loss (including judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal, state,
local, or foreign taxes imposed on any director or officer as a result of the
actual or deemed receipt of any payments under this Agreement) (collectively,
"Liabilities") reasonably incurred or suffered by such person in connection with
such Proceeding. The Company shall provide indemnification pursuant to this
Section 2 as soon as practicable, but in no event later than 30 days after it
receives written demand from the Indemnitee. Notwithstanding anything in this
Agreement to the contrary and except as provided in Section 5 below, the
Indemnitee shall not be entitled to indemnification pursuant to this Agreement
(i) in connection with any Proceeding initiated by the Indemnitee against the
Company or any director or officer of the Company (other than a Proceeding to
enforce rights under this Agreement or the Certificate of Incorporation or
Bylaws as to which the Indemnitee shall be entitled to indemnification in
accordance with Sections 5 and 7, unless the Company has joined in or consented
to the initiation of such Proceeding or (ii) on account of any suit in which
judgment is rendered against the Indemnitee pursuant to Section 16(b) of the
Exchange Act for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Company.
3. ADVANCEMENT OF EXPENSES. The Company shall advance Expenses to the
Indemnitee within 30 business days of such request (an "Expense Advance");
provided, however, that if required by applicable corporate laws such Expenses
shall be advanced only upon delivery to the Company of an undertaking by or on
behalf of the Indemnitee to repay such amount if it is ultimately determined
that the Indemnitee is not entitled to be indemnified by the Company; and
provided further, that the Company shall make such advances only to the extent
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permitted by law. Expenses incurred by the Indemnitee while not acting in
his/her capacity as a director or officer, including service with respect to
employee benefit plans, may be advanced upon such terms and conditions as the
Board, in its sole discretion, deems appropriate.
4. REVIEW PROCEDURE FOR INDEMNIFICATION. Notwithstanding the foregoing,
(i) the obligations of the Company under Sections 2 and 3 above shall be subject
to the condition that the Reviewing Party shall not have determined (in a
written opinion, in any case in which the special independent counsel referred
to in Section 6 hereof is involved) that the Indemnitee would not be permitted
to be indemnified under applicable law, and (ii) the obligation of the Company
to make an Expense Advance pursuant to Section 3 above shall be subject to the
condition that, if, when and to the extent that the Reviewing Party determines
that the Indemnitee would not be permitted to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by the Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts theretofore paid;
provided, however, that if the Indemnitee has commenced legal proceedings in a
court of competent jurisdiction pursuant to Section 5 below to secure a
determination that the Indemnitee should be indemnified under applicable law,
any determination made by the Reviewing Party that the Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and the
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 have lapsed). The
Indemnitee's obligation to reimburse the Company for Expense Advances pursuant
to this Section 4 shall be unsecured and no interest shall be charged thereon.
If there has not been a Change in Control, the Reviewing Party shall be selected
by the Board, and if there has been such a Change in Control, other than a
Change in Control which has been approved by a majority of the Company's Board
who were directors immediately prior to such Change in Control, the Reviewing
Party shall be the special independent counsel referred to in Section 6 hereof.
5. ENFORCEMENT OF INDEMNIFICATION RIGHTS. If the Reviewing Party
determines that the Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, or if the Indemnitee has
not otherwise been paid in full pursuant to Sections 2 and 3 above within 30
days after a written demand has been received by the Company, the Indemnitee
shall have the right to commence litigation in any court in the State of
Delaware having subject matter jurisdiction thereof and in which venue is proper
to recover the unpaid amount of the demand (an "Enforcement Proceeding") and, if
successful in whole or in part, the Indemnitee shall be entitled to be paid any
and all Expenses in connection with such Enforcement Proceeding. The Company
hereby consents to service of process for such Enforcement Proceeding and to
appear in any such Enforcement Proceeding. Any determination by the Reviewing
Party otherwise shall be conclusive and binding on the Company and the
Indemnitee. In any Enforcement Proceeding brought by the Indemnitee, the burden
of proving that the Indemnitee is not entitled to indemnification shall be on
the Company.
6. CHANGE IN CONTROL. The Company agrees that if there is a Change in
Control of the Company, other than a Change in Control which has been approved
by a majority of the Company's Board who were directors immediately prior to
such Change in Control, then with respect to all matters thereafter arising
concerning the rights of the Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or under
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applicable law or the Certificate of Incorporation or Bylaws now or hereafter in
effect relating to indemnification for Indemnifiable Events, the Company shall
seek legal advice only from special independent counsel selected by the
Indemnitee and approved by the Company, which approval shall not be unreasonably
withheld. Such special independent counsel shall not have otherwise performed
services for the Company or the Indemnitee, other than in connection with such
matters, within the last five years. Such 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 the Indemnitee in an action to determine the Indemnitee's rights under this
Agreement. Such counsel, among other things, shall render its written opinion to
the Company and the Indemnitee as to whether and to what extent the Indemnitee
would be permitted to be indemnified under applicable law. The Company agrees to
pay the reasonable fees of the special independent counsel referred to above and
to indemnify fully such counsel against any and all expenses (including
attorneys' fees), claims, liabilities and damages arising out of or relating to
this Agreement or the engagement of special independent counsel pursuant to this
Agreement.
7. PARTIAL INDEMNITY. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of the
Expenses and Liabilities, but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the portion thereof
to which the Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement (including Section 2(ii)), to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any or
all Proceedings relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter therein, including dismissal without prejudice,
or in the prosecution of any Proceedings for the enforcement of Indemnitee's
rights under this Agreement or the Certificate of Incorporation or Bylaws, the
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith. 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.
8. NON-EXCLUSIVITY. The rights of the Indemnitee hereunder shall be in
addition to any other rights the Indemnitee may have under any statute,
provision of the Certificate of Incorporation or Bylaws, vote of stockholders or
disinterested directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office. To the extent
that a change in the DGCL permits greater indemnification by agreement than
would be afforded currently under the Certificate of Incorporation and Bylaws
and this Agreement, or is otherwise more favorable to the Indemnitee in any
respect than this Agreement, it is the intent of the parties hereto that the
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change.
9. LIABILITY INSURANCE. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance, the
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
or officer of the Company. Indemnitee shall be given prompt notice of any
change, lapse or cancellation of the Company's directors and officers' liability
insurance.
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10. SETTLEMENT OF CLAIMS. The Company shall not be liable to indemnify the
Indemnitee under this Agreement (a) for any amounts paid in settlement of any
action or claim effected without the Company's written consent, which consent
shall not be unreasonably withheld; or (b) for 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.
11. NO PRESUMPTION. For purposes of this Agreement, to the fullest extent
permitted by law, the termination of any Proceeding, action, suit or 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 the 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.
12. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Company or any affiliate of
the Company against the Indemnitee, the Indemnitee's spouse, heirs, executors or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, or such longer period as may be
required by state law under the circumstances, and any claim or cause of action
of the Company or its affiliate shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such period; provided,
however, that if any shorter period of limitations is otherwise applicable to
any such cause of action, such shorter period shall govern.
13. CONSENT AND WAIVER BY THIRD PARTIES. The Indemnitee hereby represents
and warrants that he or she has obtained all waivers and/or consents from third
parties which are necessary for his or her employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Indemnitee represents that he or she is not bound
by any agreement or any other existing or previous business relationship which
conflicts with, or may conflict with, the performance of his or her obligations
hereunder or prevent the full performance of his or her duties and obligations
hereunder.
14. AMENDMENT OF THIS AGREEMENT. No supplement, modification 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. Except as
specifically provided herein, no failure to exercise or any delay in exercising
any right or remedy hereunder shall constitute a waiver thereof.
15. 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 the Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights (other than rights under any personal insurance maintained
by the Indemnitee).
16. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against
Indemnitee to the
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extent the Indemnitee has otherwise actually received payment (under any
insurance policy, Bylaw, vote, agreement or otherwise) of the amounts otherwise
indemnifiable hereunder.
17. BINDING EFFECT. 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 the
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
regardless of whether the Indemnitee continues to serve as a director or officer
of the Company or of any other enterprise (or in any other capacity referred to
in the definition of Indemnifiable Event) at the Company's request.
18. 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) is 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 limitation, 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.
19. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such State without giving effect to the
principles of conflicts of laws.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21. NOTICES. All notices, demands, and other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand, against receipt, or mailed, postage prepaid,
certified or registered mail, return receipt requested, and addressed to the
Company at:
Stentor, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
With a copy to:
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Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx
00(xx) Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
and to the Indemnitee at:
_________________
_________________
_________________
_________________
Notice of change of address shall be effective only when done in
accordance with this Section. All notices complying with this Section shall be
deemed to have been received on the date of delivery or on the third business
day after mailing.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day first set forth above.
THE COMPANY:
STENTOR, INC.
By:___________________________________
Name: ________________________________
Title: _______________________________
INDEMNITEE:
______________________________________
Signature
Print Name: __________________________
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