EXHIBIT 10.42
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is dated as of August 17,
2007, between Intraop Medical Corporation, a Nevada corporation (the
"Corporation"), and ___________________ ("Indemnitee").
RECITALS
WHEREAS, Indemnitee has been requested by the Corporation to serve as a
member of the board of directors of the Corporation (the "Board of Directors")
and in such capacity or otherwise as an Agent (as hereinafter defined) of the
Corporation, will be performing a valuable service for the Corporation; and
WHEREAS, Indemnitee is willing to serve and continue to serve as a director
of the Corporation on the condition that he be indemnified as herein provided;
and
WHEREAS, it is intended that Indemnitee shall be paid promptly by the
Corporation all amounts necessary to effectuate in full the indemnity provided
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants in this
Agreement, and of Indemnitee serving and continuing to serve the Corporation as
an Agent and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Services by Indemnitee. Indemnitee agrees to serve (a) as a director
of the Corporation so long as Indemnitee is duly appointed or elected and
qualified in accordance with the applicable provisions of the Amended and
Restated Articles of Incorporation ("Articles of Incorporation") and bylaws of
the Corporation, and until such time as Indemnitee resigns or fails to stand for
election or is removed from Indemnitee's position, or (b) otherwise as an Agent
(as hereinafter defined) of the Corporation. Indemnitee may, in his discretion,
from time to time also perform other services at the request or for the
convenience of, or otherwise benefiting the Corporation. Indemnitee may at any
time and for any reason resign or be removed from such position (subject to any
other contractual obligation or other restriction imposed in the Articles of
Incorporation or by operation of law).
2. Indemnification. Subject to the limitations set forth herein and in
Section 6 hereof, the Corporation hereby agrees to indemnify and hold Indemnitee
harmless as follows:
The Corporation shall, with respect to any Proceeding (as hereinafter
defined) associated with Indemnitee's being an Agent of the Corporation,
indemnify and hold Indemnitee harmless to the fullest extent permitted by
applicable law and the Articles of Incorporation of the Corporation in effect on
the date hereof or as such law or Articles of Incorporation may from time to
time be amended (but, in the case of any such amendment, only to the extent such
amendment permits the Corporation to provide broader indemnification rights than
the law or Articles of Incorporation permitted the Corporation to provide before
such amendment). The right to indemnification conferred herein and in the
Articles of Incorporation shall be presumed to have been relied upon by
Indemnitee in serving or continuing to serve the Corporation as an Agent and
shall be enforceable as a contract right. Without in any way diminishing the
scope of the indemnification provided by this Section 2, the Corporation will
indemnify and hold Indemnitee harmless to the full extent permitted by law if
and wherever Indemnitee is or was a party or is threatened to be made a party to
any Proceeding, including any such Proceeding brought by or in the right of the
Corporation, by reason of the fact that Indemnitee is or was an Agent or by
reason of anything done or not done by Indemnitee in such capacity, against
Expenses (as hereinafter defined) and Liabilities (as hereinafter defined)
actually and reasonably incurred by Indemnitee or on his behalf in connection
with the investigation, defense, settlement or appeal of such Proceeding, or
being a witness in, or preparing to defend or be a witness in, such Proceeding.
In addition to, and not as a limitation of, the foregoing, the rights of
indemnification of Indemnitee provided under this Agreement shall include those
rights set forth in Sections 3 and 8 below. Notwithstanding the foregoing, the
Corporation shall be required to indemnify and hold Indemnitee harmless in
connection with a Proceeding commenced by Indemnitee (other than a Proceeding
commenced by Indemnitee to enforce Indemnitee's rights under this Agreement)
only if the commencement of such Proceeding was authorized by the Board of
Directors.
3. Advancement of Expenses. All Expenses incurred by or on behalf of
Indemnitee (including costs of enforcement of this Agreement) shall be advanced
from time to time by the Corporation to Indemnitee within thirty (30) days after
the receipt by the Corporation of a written request for an advance of Expenses,
whether prior to or after final disposition of a Proceeding (except to the
extent that there has been a Final Adverse Determination (as hereinafter
defined) that Indemnitee is not entitled to be indemnified for such Expenses),
including without limitation any Proceeding brought by or in the right of the
Corporation. The written request for an advancement of any and all expenses
under this paragraph shall contain reasonable detail of the Expenses incurred by
Indemnitee. By execution of this Agreement, Indemnitee shall be deemed to have
made whatever undertaking may be required by law at the time of any advancement
of Expenses with respect to repayment to the Corporation of such Expenses. In
the event that the Corporation shall breach its obligation to advance Expenses
under this Section 3, the parties hereto agree that Indemnitee's remedies
available at law would not be adequate and that Indemnitee would be entitled to
specific performance.
4. Presumptions and Effect of Certain Proceedings. Upon making a
request for indemnification, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Corporation shall have the burden
of proof to overcome that presumption in reaching any contrary determination.
The termination of any Proceeding by judgment, order, settlement, arbitration
award or conviction, or upon a plea of nolo contendere or its equivalent shall
not affect this presumption or, except as determined by a judgment or other
final adjudication adverse to Indemnitee, establish a presumption with regard to
any factual matter relevant to determining Indemnitee's rights to
indemnification hereunder. If the person or persons so empowered to make a
determination pursuant to Section 5 hereof shall have failed to make the
requested determination within ninety (90) days after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere or its equivalent, or other disposition or partial disposition
of any Proceeding or any other event that could enable the Corporation to
determine Indemnitee's entitlement to indemnification, the requisite
determination that Indemnitee is entitled to indemnification shall be deemed to
have been made.
- 2 -
5. Procedure for Determination of Entitlement to Indemnification.
(a) Whenever Indemnitee believes that Indemnitee is entitled to
indemnification pursuant to this Agreement, Indemnitee shall submit a written
request for indemnification to the Corporation. Any request for indemnification
shall include sufficient documentation or information reasonably available to
Indemnitee for the determination of entitlement to indemnification. In any
event, Indemnitee shall submit Indemnitee's claim for indemnification within a
reasonable time, not to exceed five (5) years after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere or its equivalent, or final termination, whichever is the later
date for which Indemnitee requests indemnification. The Secretary or other
appropriate officer shall, promptly upon receipt of Indemnitee's request for
indemnification, advise the Board of Directors in writing that Indemnitee has
made such request. Determination of Indemnitee's entitlement to indemnification
shall be made not later than ninety (90) days after the Corporation's receipt of
Indemnitee's written request for such indemnification, provided that any request
for indemnification for Liabilities, other than amounts paid in settlement,
shall have been made after a determination thereof in a Proceeding.
Notwithstanding anything to the contrary contained herein, the procedures set
forth in this Section 5 shall not apply to any request by the Indemnitee for the
advance of expenses, and shall not in any way prejudice Indemnitee's right to
such advancement as set forth in Section 3 hereof.
(b) The Corporation shall be entitled to select the forum in which
Indemnitee's entitlement to indemnification will be heard; provided, however,
that if there is a Change in Control of the Corporation, Independent Legal
Counsel (as hereinafter defined) shall determine whether Indemnitee is entitled
to indemnification. The forum shall be any one of the following:
(i) the stockholders of the Corporation;
(ii) a majority vote of Disinterested Directors (as hereinafter
defined), even though less than a quorum;
(iii) Independent Legal Counsel, whose determination shall be
made in a written opinion; or
(iv) a panel of three arbitrators, one selected by the
Corporation, another by Indemnitee and the third by the first two arbitrators;
or if for any reason three arbitrators are not selected within thirty (30) days
after the appointment of the first arbitrator, then selection of additional
arbitrators shall be made by the American Arbitration Association. If any
arbitrator resigns or is unable to serve in such capacity for any reason, the
American Arbitration Association shall select such arbitrator's replacement. The
arbitration shall be conducted pursuant to the commercial arbitration rules of
the American Arbitration Association now in effect.
- 3 -
6. Specific Limitations on Indemnification. Notwithstanding anything in
this Agreement to the contrary, the Corporation shall not be obligated under
this Agreement to make any payment to Indemnitee with respect to any Proceeding:
(a) To the extent that payment is actually made to Indemnitee under
any insurance policy, or is made to Indemnitee by the Corporation or an
affiliate otherwise than pursuant to this Agreement. Notwithstanding the
availability of such insurance, Indemnitee also may claim indemnification from
the Corporation pursuant to this Agreement by assigning to the Corporation any
claims under such insurance to the extent Indemnitee is paid by the Corporation;
(b) Provided there has been no Change in Control, for Liabilities in
connection with Proceedings settled without the Corporation's consent, which
consent, however, shall not be unreasonably withheld;
(c) For an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Corporation within the meaning of section 16(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
similar provisions of any state statutory or common law; or
(d) To the extent it would be otherwise prohibited by law, if so
established by a judgment or other final adjudication adverse to Indemnitee.
7. Fees and Expenses of Independent Legal Counsel. The Corporation
agrees to pay the reasonable fees and expenses of Independent Legal Counsel or a
panel of three arbitrators should such Independent Legal Counsel or such
arbitrators be retained to make a determination of Indemnitee's entitlement to
indemnification pursuant to Section 5(b) of this Agreement, and to fully
indemnify and hold such Independent Legal Counsel or arbitrators harmless
against any and all expenses and losses incurred by any of them arising out of
or relating to this Agreement or their engagement pursuant hereto.
8. Remedies of Indemnitee.
(a) In the event that (i) a determination pursuant to Section 5
hereof is made that Indemnitee is not entitled to indemnification, (ii) advances
of Expenses are not made pursuant to this Agreement, (iii) payment has not been
timely made following a determination of entitlement to indemnification pursuant
to this Agreement, or (iv) Indemnitee otherwise seeks enforcement of this
Agreement, Indemnitee shall be entitled to a final adjudication in the state
courts of the State of Nevada of the remedy sought. Alternatively, unless (i)
the determination was made by a panel of arbitrators pursuant to Section
5(b)(iv) hereof, or (ii) court approval is required by law for the
indemnification sought by Indemnitee, Indemnitee at Indemnitee's option may seek
an award in arbitration to be conducted by a single arbitrator pursuant to the
commercial arbitration rules of the American Arbitration Association now in
effect, which award is to be made within ninety (90) days following the filing
of the demand for arbitration. The Corporation shall not oppose Indemnitee's
right to seek any such adjudication or arbitration award. In any such proceeding
or arbitration Indemnitee shall be presumed to be entitled to indemnification
and advancement of Expenses under this Agreement and the Corporation shall have
the burden of proof to overcome that presumption.
- 4 -
(b) In the event that a determination that Indemnitee is not
entitled to indemnification, in whole or in part, has been made pursuant to
Section 5 hereof, the decision in the judicial proceeding or arbitration
provided in paragraph (a) of this Section 8 shall be made de novo and Indemnitee
shall not be prejudiced by reason of a determination that Indemnitee is not
entitled to indemnification.
(c) If a determination that Indemnitee is entitled to
indemnification has been made pursuant to Section 5 hereof, or is deemed to have
been made pursuant to Section 4 hereof or otherwise pursuant to the terms of
this Agreement, the Corporation shall be bound by such determination in the
absence of a misrepresentation or omission of a material fact by Indemnitee in
connection with such determination.
(d) The Corporation shall be precluded from asserting that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Corporation shall stipulate in any such court or before any
such arbitrator that the Corporation is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.
(e) Expenses reasonably incurred by Indemnitee in connection with
Indemnitee's request for indemnification under, seeking enforcement of or to
recover damages for breach of this Agreement shall be borne by the Corporation
when and as incurred by Indemnitee irrespective of any Final Adverse
Determination (as hereinafter defined) that Indemnitee is not entitled to
indemnification.
9. Contribution. 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 Corporation, 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 Corporation 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 Corporation (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
- 5 -
10. Maintenance of Insurance. The Corporation represents that it will
seek to obtain certain directors' and officers' liability insurance policies
covering its directors and officers. Subject only to the provisions within this
Section 10, the Corporation agrees that so long as Indemnitee shall have
consented to serve or shall continue to serve as a director or officer of the
Corporation or both, or as an Agent of the Corporation, and thereafter so long
as Indemnitee shall be subject to any possible Proceeding (such periods being
hereinafter sometimes referred to as the "Indemnification Period"), the
Corporation will use its best reasonable efforts to maintain in full force and
effect for the benefit of Indemnitee one or more valid, binding and enforceable
policies of directors' and officers' liability insurance from established and
reputable insurers providing, in all respects, coverage both in scope and amount
which is no less favorable than that presently provided. Notwithstanding the
foregoing, the Corporation shall not be required to maintain said policies of
directors' and officers' liability insurance if such insurance is not reasonably
available or if it is in good faith determined by the then directors of the
Corporation either that:
(a) The premium cost of maintaining such insurance is substantially
disproportionate to the amount of coverage provided thereunder and the premiums
paid by other corporations similarly situated; or
(b) The protection provided by such insurance to the Indemnitee is
so limited by exclusions applicable to directors and other agents that there is
insufficient benefit to the Indemnitee to warrant the cost of maintaining such
insurance.
Anything in this Agreement to the contrary notwithstanding, to the
extent that and for so long as the Corporation shall choose to continue to
maintain any policies of directors' and officers' liability insurance during the
Indemnification Period, the Corporation shall maintain similar and equivalent
insurance for the benefit of Indemnitee during the Indemnification Period
(unless such insurance shall be less favorable to Indemnitee than the
Corporation's existing policies). The Board of Directors of the Corporation
will, from time to time, in good faith review any decision not to maintain
directors' and officers' liability insurance and will purchase such insurance at
any time that the conditions set forth in clauses (i) or (ii), above, cease to
apply.
11. Modification, Waiver, Termination and Cancellation. No supplement,
modification, termination, cancellation 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.
12. Subrogation. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all papers reasonably
required and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Corporation
effectively to bring suit to enforce such rights.
13. Notice by Indemnitee and Defense of Claim. Indemnitee shall
promptly notify the Corporation in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter, whether civil, criminal, administrative or
investigative, but the omission so to notify the Corporation will not relieve it
from any liability that it may have to Indemnitee if such omission does not
prejudice the Corporation's rights. If such omission does prejudice the
Corporation's rights, the Corporation will be relieved from liability only to
the extent of such prejudice; nor will such omission relieve the Corporation
from any liability that it may have to Indemnitee otherwise than under this
Agreement. With respect to any Proceeding as to which Indemnitee notifies the
Corporation of the commencement thereof:
- 6 -
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) Except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee; provided, however, that the Corporation shall not be
entitled to assume the defense of any Proceeding if there has been a Change in
Control or if Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Indemnitee with respect to such
Proceeding. After notice from the Corporation to Indemnitee of its election to
assume the defense thereof, the Corporation will not be liable to Indemnitee
under this Agreement for any Expenses subsequently incurred by Indemnitee in
connection with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the right to
employ Indemnitee's own counsel in such Proceeding, but the fees and expenses of
such counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Indemnitee unless:
(i) the employment of counsel by Indemnitee has been authorized
by the Corporation or there has been a Change of Control;
(ii) Indemnitee shall have reasonably concluded that there may be
a conflict of interest between the Corporation and Indemnitee with respect to
such Proceeding; or
(iii) the Corporation shall not in fact have employed counsel to
assume the defense in such Proceeding or shall not in fact have assumed such
defense and be acting in connection therewith with reasonable diligence;
in each of which cases the fees and expenses of such counsel shall be at the
expense of the Corporation.
(c) The Corporation shall not settle any Proceeding in any manner
that would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent. Neither the Corporation nor Indemnitee will unreasonably
withhold their consent to any proposed settlement.
14. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
- 7 -
(a) If to Indemnitee, to:
---------------------
---------------------
---------------------
(b) If to the Corporation, to:
Intraop Medical Corporation
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
15. Nonexclusivity. The rights of Indemnitee hereunder shall not be
deemed exclusive of any other rights to which Indemnitee may be entitled under
applicable law, the Corporation's Articles of Incorporation or bylaws, or any
agreements, vote of stockholders, resolution of the Board of Directors or
otherwise, and to the extent that during the Indemnification Period the rights
of the then existing directors and officers are more favorable to such directors
or officers than the rights currently provided to Indemnitee thereunder or under
this Agreement, Indemnitee shall be entitled to the full benefits of such more
favorable rights.
16. Certain Definitions.
(a) "Agent" shall mean any person who is, was or may be deemed to
be, or who has consented to serve as, a director, officer, controlling person,
employee, agent, fiduciary, joint venturer, partner, manager or other official
of the Corporation or a subsidiary or an affiliate of the Corporation, or any
other entity (including without limitation, an employee benefit plan) either at
the request of, for the convenience of, or otherwise to benefit the Corporation
or a subsidiary of the Corporation.
(b) "Change in Control" shall mean the occurrence of any of the
following:
(i) Any "person" is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing at least 50% of the total voting power represented
by the Corporation's then outstanding voting securities;
(ii) The stockholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation, if such merger or
consolidation would result in the voting securities of the Corporation
outstanding immediately prior thereto representing (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) 50% or less of the total voting power represented by the voting
securities of the Corporation or such surviving entity outstanding immediately
after such merger or consolidation;
- 8 -
(iii) A majority of the members of the board of directors as of
the look-back date no longer serve as directors; or
(iv) The stockholders of the Corporation approve (A) a plan of
complete liquidation of the Corporation or (B) an agreement for the sale or
disposition by the Corporation of all or substantially all of the Corporation's
assets.
For purposes of subsection (i) above, the term "person" shall have the same
meaning as when used in sections 13(d) and 14(d) of the Exchange Act, but shall
exclude (x) a trustee or other fiduciary holding securities under an employee
benefit plan of the Corporation or of a parent or subsidiary of the Corporation
or (y) a corporation owned directly or indirectly by the stockholders of the
Corporation in substantially the same proportions as their ownership of the
common stock of the Corporation.
For purposes of Subsection (iii) above, the term "look-back date" shall
mean the later of (x) the date of this Agreement or (y) the date twenty-four
(24) months prior to the date of the event that may constitute a "Change in
Control."
Any other provision of this Section 16(b) notwithstanding, the term "Change
in Control" shall not include a transaction, if undertaken at the election of
the Corporation, the result of which is to sell all or substantially all of the
assets of the Corporation to another corporation (the "surviving corporation");
provided that the surviving corporation is owned directly or indirectly by the
stockholders of the corporation immediately following such transaction in
substantially the same proportions as their ownership of the Corporation's
common stock immediately preceding such transaction; and provided, further, that
the surviving corporation expressly assumes this Agreement.
(c) "Disinterested Director" shall mean a director of the
Corporation who is not or was not a party to or otherwise involved in the
Proceeding in respect of which indemnification is being sought by Indemnitee.
(d) "Expenses" shall include all direct and indirect costs
(including, without limitation, attorneys' fees, disbursements, retainers, court
costs, transcripts, fees of experts, witness fees, other professional fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, all other disbursements or
out-of-pocket expenses and reasonable compensation for time spent by Indemnitee
for which Indemnitee is otherwise not compensated by the Corporation or any
third party) actually and reasonably incurred in connection with either the
investigation, defense, settlement or appeal of a Proceeding, or being a witness
in, or preparing to defend or be a witness in such a Proceeding, or establishing
or enforcing a right to indemnification under this Agreement, applicable law or
otherwise: provided, however, that "Expenses" shall not include any Liabilities.
(e) "Final Adverse Determination" shall mean that a determination
that Indemnitee is not entitled to indemnification shall have been made pursuant
to Section 5 hereof and either (1) a final adjudication in a Nevada court or
decision of an arbitrator pursuant to Section 8(a) hereof shall have denied
Indemnitee's right to indemnification hereunder, or (2) Indemnitee shall have
failed to file a complaint in a Nevada court or seek an arbitrator's award
pursuant to Section 8(a) for a period of one hundred twenty (120) days after the
determination made pursuant to Section 5 hereof.
- 9 -
(f) "Independent Legal Counsel" shall mean a law firm or a member of
a firm selected by the Corporation and approved by Indemnitee (which approval
shall not be unreasonably withheld) or, if there has been a Change in Control,
selected by Indemnitee and approved by the Corporation (which approval shall not
be unreasonably withheld), that neither is presently nor in the past five (5)
years has been retained to represent: (i) the Corporation or any of its
subsidiaries or affiliates, or Indemnitee or any corporation of which Indemnitee
was or is a director, officer, employee or agent, or any subsidiary or affiliate
of such a corporation, in any material matter, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Legal 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 Corporation or
Indemnitee in an action to determine Indemnitee's right to indemnification under
this Agreement.
(g) "Liabilities" shall mean liabilities of any type whatsoever
including, but not limited to, any judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in respect
of such judgments, fines, penalties or amounts paid in settlement) of any
Proceeding.
(h) "Proceeding" shall mean any threatened, pending or completed
action, claim, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, wherever brought,
whether civil, criminal, administrative or investigative, that is associated
with Indemnitee's being an Agent of the Corporation.
17. Binding Effect; Duration and Scope of Agreement; Related Parties.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets
of the Corporation), spouses, heirs and personal and legal representatives. This
Agreement shall continue in effect during the Indemnification Period, regardless
of whether Indemnitee continues to serve as an Agent.
(b) To the extent that Indemnitee is serving on the Board of
Directors at the direction of any stockholder of the Corporation who, pursuant
to the Articles of Incorporation or contractual arrangement, shall have the
right to elect or appoint Indemnitee to the Board of Directors (an "Appointing
Stockholder"), the Corporation shall indemnify and hold such Appointing
Stockholder harmless from and against Expenses and Liabilities actually and
reasonably incurred by Appointing Stockholder or on its behalf in connection
with the investigation, defense, settlement or appeal of any Proceeding, or
being a witness in, or preparing to defend or be a witness in, such Proceeding,
arising solely by reason of the fact that Appointing Stockholder has the ability
to appoint or elect Indemnitee to the Board of Directors, provided however, that
(i) the limitations on indemnification in Section 6 shall apply to Appointing
Stockholder as "Indemnitee" hereunder; and (ii) no such indemnification shall be
available to any Appointing Stockholder in the event that Indemnitee shall not
be entitled to indemnification in the same or any related proceeding. The
Corporation and Indemnitee agree that such Appointing Stockholder is an intended
third party beneficiary of this Agreement.
- 10 -
18. Severability. If any provision or provisions of this Agreement (or
any portion thereof) shall be held to be invalid, illegal or unenforceable for
any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby; and
(b) to the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any 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 Nevada, as applied to
contracts between Nevada residents entered into and to be performed entirely
within the State of Nevada, without regard to conflict of laws rules.
20. Consent to Jurisdiction. The Corporation and Indemnitee each
irrevocably consent to the jurisdiction of the courts of the State of Nevada for
all purposes in connection with any action or proceeding that arises out of or
relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Nevada.
21. Entire Agreement. This Agreement represents the entire agreement
between the parties hereto, and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Section 15 hereof.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.
- 11 -
IN WITNESS WHEREOF, the parties hereto have executed the Indemnification
Agreement as of the date set forth in the first paragraph hereof.
INTRAOP MEDICAL CORPORATION
a Nevada corporation
By:
---------------------------------
Name:
Title:
INDEMNITEE
------------------------------------
[Name]
- 12 -
