INDEMNITY AGREEMENT
Exhibit 10.1
This Indemnity Agreement (this “Agreement”), dated as of ___, 2006, (the
“Effective Date”) is made by and between Asthmatx, Inc., a Delaware corporation (the “Company”),
and ___, an individual who is a director and/or officer of the Company
(“Indemnitee”).
RECITALS
A. The Company is aware that competent and experienced persons are increasingly reluctant to
serve as directors or officers of corporations unless they are protected by comprehensive liability
insurance and/or indemnification agreements, due to their increased exposure to litigation costs
and risks resulting from their service to such corporations, and because this exposure frequently
bears no reasonable relationship to their compensation as directors and officers.
B. Section 145 (“Section 145”) of the General Corporation Law of Delaware, under which the
Company is organized (the “Law”) empowers the Company to indemnify by agreement its officers,
directors, employees and agents, and persons who serve, at the request of the Company, as
directors, officers, employees or agents of other corporations or enterprises, and expressly
provides that the indemnification provided by the Law is not exclusive.
C. Based on their experience as business managers, the Board of Directors of the Company (the
“Board”) has concluded that, to retain and attract talented and experienced individuals to serve as
officers and directors of the Company, and to encourage such individuals to take the business risks
necessary for the success of the Company, it is necessary for the Company contractually to
indemnify officers and directors and to assume for itself liability for expenses and damages in
connection with claims against such officers and directors in connection with their service to the
Company.
D. The Company desires and has requested Indemnitee to serve or continue to serve as a
director or officer of the Company. The Company desires that Indemnitee be free from undue concern
regarding claims for damages arising out of or related to such services, which may impair the free
exercise of Indemnitee’s best business judgment on behalf of the Company, its subsidiaries and
other enterprises affiliated with the Company.
NOW, THEREFORE, in consideration of the mutual promises made in this Agreement, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms have the meanings defined
below:
1.1 Affiliate. An “affiliate” of the Company means any foreign or domestic
corporation, partnership, limited liability company, joint venture, firm, trust, enterprise and/or
other entity (each, an “entity”) that is an “affiliate” of the Company within the meaning of Rule
405 of Regulation C promulgated under the Securities Act of 1933, as amended.
1.2 Agent. An “agent” of the Company means any individual who: (a) is or was a
director or officer of the Company or a subsidiary of the Company; (b) is or was serving at the
request of, for the convenience of, or to represent the interest of the Company or a subsidiary of
the Company as a director or officer (or in a position of comparable authority) of another entity
or of an affiliate of the Company; (c) was a director or officer of a foreign or domestic
corporation which was a predecessor corporation of the Company or a subsidiary of such predecessor
corporation; or (d) was serving as a director or officer (or a person having comparable authority)
of another entity or of an affiliate of the Company at the request of, for the convenience of, or
to represent the interests of, such predecessor corporation or a subsidiary of such predecessor
corporation.
1.3 Change in Control. A “Change in Control” shall be deemed to have occurred if,
after the Effective Date:
(a) any “person” (as defined below) increases such person’s beneficial ownership in the
Company’s Voting Securities (as defined below) by at least twenty (20) percentage points without
the prior approval of at least two-thirds (2/3) of the Incumbent Directors in office immediately
prior to such person attaining such percentage interest;
(b) any “person” (as defined below) is or becomes the “beneficial owner” (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), directly or
indirectly, of Voting Securities of the Company representing thirty
percent (30%) or more of the
total combined voting power of all the Company’s then outstanding Voting Securities;
(c) during any period of twenty-four (24) consecutive months that begins on or after the
Effective Date, the Incumbent Directors (as defined below) cease for any reason to constitute at
least two-thirds (2/3) of the members of the Board then in office (where for purposes hereof, with
respect to any particular period of twenty-four (24) consecutive months, the term “Incumbent
Directors” means (i) the individuals who at the beginning of such twenty-four (24) consecutive
month period constituted the Board and (ii) each other individual whose election or nomination for
election to the Board during such twenty-four (24) month period was approved by a vote of at least
two-thirds (2/3) of the directors in office who were either members of the Board at the beginning
of such twenty-four (24) month period or whose election or nomination for election to the Board was
approved as described in this clause (ii));
(d) the Company is a party to a consummated merger or consolidation as a result of which the
Voting Securities of the Company outstanding immediately prior thereto do not represent (either by
remaining outstanding or by being converted into voting securities of the surviving entity of such
merger or consolidation or of a parent of such surviving entity), at least fifty percent (50%) of
the total combined voting power represented by the voting securities of such surviving entity or a
parent of such surviving entity immediately after consummation of such merger or consolidation; or
(e) the stockholders of the Company approve a plan of complete liquidation or dissolution 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
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Company’s assets (other than a sale or disposition of all or substantially all
the Company’s assets to another entity that, immediately after such transaction is owned, directly
or indirectly, by the stockholders of the Company immediately prior to the transaction in
substantially the same proportion as their ownership of the Company’s capital stock immediately
prior to such transaction if the acquiring entity assumes this Agreement).
For purposes of this Section 1.3: (a) the term “person” will have the meaning given to such
term in Section 13(d) and 14(d) of the Exchange Act except that it shall exclude (i) a trustee or
other fiduciary holding securities under an employee benefit plan of the Company or (ii) a
corporation or other entity owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company); and (b) the term
“Voting Securities” of the Company means any securities of the Company that are entitled to vote
generally in the election of directors
1.4 Company. The “Company” includes, in the event of a merger or consolidation
involving the Company, the corporation or other entity surviving or resulting from such merger or
consolidation.
1.5 Expenses. The term “expenses” includes all direct and indirect costs of any type
or nature whatsoever (including, without limitation, all attorneys’ fees and related disbursements
and other out-of-pocket costs) actually and reasonably incurred by Indemnitee in connection with
the investigation, defense or appeal of, or being a witness in, a proceeding (as defined below), or
establishing or enforcing a right to indemnification or advancement of expenses under this
Agreement or Section 145; provided, however, that the term “expenses” shall not include any
judgments, fines, ERISA excise taxes or penalties or amounts paid in settlement of a proceeding.
1.6 Independent Counsel. “Independent Counsel” means a law firm, or an
attorney-at-law, that is experienced in matters of corporation law and that is not at the time in
question, nor has been for the then-past three (3) years, retained to represent: (a) the Company
or Indemnitee in any matter material to the Company or Indemnitee; or (b) any other party to the
proceeding giving rise to a claim for indemnification or advancement of expenses under this
Agreement with respect to which such Independent Counsel is to have involvement under this
Agreement; provided, however, that notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who, under applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights under this Agreement (it being
acknowledged that no such conflict of interest will be deemed to exist solely due to such law firm
or attorney-at-law (i) entering into any agreement with the Company relating to its, his or her
retention to act as Independent Counsel for purposes of this Agreement or (ii) taking any actions
contemplated as Independent Counsel under this Agreement).
1.7 Proceeding. A “proceeding” means any threatened, pending or completed action,
lawsuit, alternative dispute resolution mechanism (including but not limited to an arbitration or
mediation) or other proceeding, whether civil, criminal, administrative, investigative.
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1.8 Subsidiary. A “subsidiary” of an entity means any corporation of which more than
fifty percent (50%) of the outstanding voting securities is owned, directly or indirectly, by (a)
such entity, (b) such entity and one or more of its other subsidiaries as defined in clause (a) of
this Section or (c) by one or more of such entity’s subsidiaries as defined in clause (a) of this
Section.
2. Agreement to Serve. Indemnitee agrees to serve and/or to continue to serve as an officer
or director of the Company, at the will of the Company (or under separate written agreement, if any
such written agreement exists), in the capacity in which Indemnitee serves the Company as of the
Effective Date, faithfully and to the best of Indemnitee’s ability, so long as Indemnitee is duly
appointed or elected and qualified in accordance with the applicable provisions of the charter
documents of the Company or any subsidiary of the Company; provided, however, that
Indemnitee may at any time and for any reason resign from such position (subject to any contractual
obligation that Indemnitee may have assumed apart from this Agreement), and the Company or any
subsidiary shall have no obligation under this Agreement to continue Indemnitee in any such
position.
3. Directors’ and Officers’ Insurance. The Company shall, to the extent that the Board
determines it to be economically reasonable, maintain a policy of directors’ and officers’
liability insurance (“D&O Insurance”), on such terms and conditions and in such coverage amounts as
may be approved by the Board from time to time.
4. Mandatory Indemnification.
4.1 Third Party Actions. If Indemnitee was or is a party or is threatened to be made
a party to any proceeding (other than an action by or in the right of the Company) by reason of the
fact that Indemnitee is or was an agent of the Company, or by reason of anything done or not done
by Indemnitee in Indemnitee’s capacity as an agent of the Company, then, subject to the provisions
of Section 8 and the exceptions set forth in Section 9, the Company shall indemnify Indemnitee
against any and all expenses and liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred by Indemnitee in connection with the investigation, defense, settlement or
appeal of such proceeding or being a witness in such proceeding if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of
the Company and, with respect to any criminal action or proceeding, Indemnitee had no reasonable
cause to believe that Indemnitee’s conduct was unlawful.
4.2 Actions by or in Right of the Company. If Indemnitee was or is a party to, or is
threatened to be made a party to, any proceeding by or in the right of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or was an agent of the Company, or
by reason of anything done or not done by Indemnitee in Indemnitee’s capacity as an agent of the
Company, then, subject to the provisions of Section 8 and the exceptions set forth in Section 9,
the Company shall indemnify Indemnitee against any amounts paid in settlement of any such
proceeding and all expenses actually and reasonably incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of such proceeding or being a witness in such
proceeding if Indemnitee acted in good faith and in a manner Indemnitee
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reasonably believed to be in, or not opposed to, the best interests of the Company;
except that no indemnification under this Section 4.2 shall be made in respect of
any claim, issue or matter as to which Indemnitee shall have been finally adjudged to be liable to
the Company by a court of competent jurisdiction due to Indemnitee’s willful misconduct of a
culpable nature in the performance of Indemnitee’s duty to the Company, unless and only to the
extent that the Delaware Court of Chancery or the court in which such proceeding was brought shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such
amounts which the Delaware Court of Chancery or such other court shall deem proper.
4.3 Witness Expenses in Certain Proceedings. Notwithstanding any other provision of
this Agreement to the contrary, to the extent that Indemnitee was or is, by reason of the fact that
Indemnitee is or was an agent of the Company, a witness in any proceeding to which Indemnitee is
not made a party or of which Indemnitee is not the subject, the Company shall indemnify Indemnitee
against all expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf
solely in connection with Indemnitee’s being a witness in such proceeding (including on appeal),
and in preparing to be a witness in such proceeding without the need for any determination with
respect to Indemnitee’s conduct pursuant to Section 8 of this Agreement.
4.4 Exception for Amounts Covered by Insurance. Notwithstanding the foregoing, the
Company shall not be obligated to indemnify Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) to the extent such have been paid directly to Indemnitee by D&O
Insurance. To the extent that any payment payable by the carrier of D&O Insurance in respect of
such expenses or liabilities has previously been paid or advanced to Indemnitee by the Company, the
parties agree that the Company shall be subrogated to the rights of Indemnitee to receive such
payments from the D&O Insurance carrier and that Indemnitee will take all actions reasonably
necessary to turn over or otherwise cause the Company to receive any such payment from the D&O
Insurance carrier.
5. Partial Indemnification and Contribution.
5.1 Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) incurred by Indemnitee in the investigation, defense,
settlement or appeal of a proceeding or in being a witness in a proceeding but is not entitled,
however, to indemnification for all of the total amount thereof, then the Company shall
nevertheless indemnify Indemnitee for such total amount except as to the portion thereof to which
Indemnitee is not entitled to indemnification.
5.2 Contribution. If Indemnitee is not entitled to the indemnification provided in
Section 4 for any reason other than the statutory limitations set forth in the Law, then in respect
of any threatened, pending or completed proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such proceeding), the Company shall contribute to the amount
of expenses (including attorneys’ fees), judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement actually and reasonably incurred and paid or payable by
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Indemnitee in such proportion as is appropriate to reflect (a) the relative benefits received
by the Company on the one hand and Indemnitee on the other hand from the transaction from which
such proceeding arose and (b) the relative fault of the Company on the one hand and of Indemnitee
on the other hand in connection with the events which resulted in such expenses, judgments, fines,
ERISA excise taxes or penalties or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of Indemnitee on the other
hand shall be determined by reference to, among other things, the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent the circumstances resulting
in such expenses, judgments, fines, ERISA excise taxes, penalties or settlement amounts. The
Company agrees that it would not be just and equitable if contribution pursuant to this Section 5.2
were determined by pro rata allocation or any other method of allocation that does not take account
of the foregoing equitable considerations.
6. Mandatory Advancement of Expenses.
6.1 Advancement. Subject to the provisions of Section 6.2 and the exceptions in
Section 9 below and except as prohibited by law, the Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense, settlement or appeal of any proceeding to
which Indemnitee is a party or is threatened to be made a party or witness by reason of the fact
that Indemnitee is or was an agent of the Company or by reason of anything done or not done by
Indemnitee in Indemnitee’s capacity as an agent of the Company. Indemnitee hereby undertakes and
agrees to promptly repay to the Company such amounts as are so advanced by the Company to
Indemnitee only if, and to the extent that, it shall ultimately be determined that Indemnitee is
not entitled to be indemnified by the Company under the provisions of this Agreement, the
Certificate of Incorporation or Bylaws of the Company, the Law or otherwise with respect to the
proceeding or proceedings for which such expenses were advanced. Subject to the foregoing, the
advances to be made hereunder shall be paid by the Company to Indemnitee within thirty (30) days
following delivery of a written request therefor by Indemnitee to the Company which includes
reasonable verification of the expenses incurred by Indemnitee for which an advance is sought.
6.2 Exception. Notwithstanding the foregoing provisions of Section 6.1, the Company
shall not be obligated to advance any expenses to Indemnitee arising from a lawsuit filed or
brought directly by the Company against Indemnitee or a criminal proceeding resulting from a
complaint made by the Company if an Independent Majority (as defined below) of the Board reasonably
determines in good faith, within thirty (30) days of Indemnitee’s request to be advanced such
expenses, that the facts known to them at the time such determination is made demonstrate clearly
and convincingly that Indemnitee acted in bad faith with respect to the subject matter of such
lawsuit or proceeding or the facts, circumstances or events from which such lawsuit or criminal
proceeding arose (a “Section 6.2 Determination”). If such a determination that Indemnitee acted in
bad faith is made, then Indemnitee may have such decision reviewed by another forum, in the manner
set forth in Section 8, with all references therein to “indemnification” being deemed to refer to
“advancement of expenses,” and the burden of proof shall be on the Company to demonstrate clearly
and convincingly that, based on the facts known at the time, Indemnitee acted in bad faith.
Notwithstanding the foregoing, if the Company has undergone a Change in Control after the
occurrence of the acts or omissions of Indemnitee that are the primary focus of the lawsuit or
criminal proceeding in question, then the
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Section 6.2 Determination with respect to such lawsuit or criminal proceeding must instead be
made in good faith by Independent Counsel selected by an Independent Majority of the Board. As used
in this Section, an “Independent Majority” of the Board means: (i) a majority of the members of
the Board other than Indemnitee (if Indemnitee is then a member of the Board); or (ii) an absolute
majority of the members of the Board if Indemnitee is not then a member of the Board.
7. Notice and Other Indemnification Procedures.
7.1 Notice of Proceeding. Promptly after receipt by Indemnitee of notice of the
commencement of or the threat of commencement of any proceeding, Indemnitee shall, if Indemnitee
believes that indemnification with respect thereto may be sought from the Company under this
Agreement, notify the Company in writing of the commencement or threat of commencement thereof.
7.2 Notice to D&O Insurance Carrier. If, at the time of the receipt of a notice of
the commencement of a proceeding pursuant to Section 7.1, the Company has D&O Insurance in effect,
the Company shall give prompt notice of the commencement of such proceeding to the insurers
providing such D&O Insurance in accordance with the procedures set forth in the applicable D&O
Insurance policy or policies. The Company shall thereafter use diligent, good faith efforts to
cause such insurers to promptly pay, on behalf of Indemnitee, all amounts payable as a result of
such proceeding in accordance with the terms of such D&O Insurance policies.
7.3 Assumption of Defense by the Company; Settlement. In the event the Company shall
be obligated to advance Indemnitee’s expenses with respect to any proceeding, the Company, if
appropriate, shall be entitled, at its option, to assume Indemnitee’s defense of such proceeding,
with counsel approved by Indemnitee (which approval shall not be unreasonably withheld or delayed),
upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company,
the Company will not be liable to Indemnitee under this Agreement or otherwise for any fees of
counsel subsequently incurred by Indemnitee with respect to the same proceeding, provided
that: (a) Indemnitee shall have the right to employ Indemnitee’s own counsel in any such
proceeding at Indemnitee’s own expense; (b) Indemnitee shall have the right to employ Indemnitee’s
own counsel in connection with any such proceeding if such counsel serves solely in a review,
observer, advice and counseling capacity and does not otherwise materially control or participate
in the defense of such proceeding, and the Company shall advance, and/or indemnify Indemnitee for,
the fees of such counsel to the extent the Company would be required to do so under the terms of
this Agreement (without regard to the provisions of this Section 7.3); and (c) if (i) the
employment of counsel by Indemnitee has been previously authorized by the Company, or (ii)
Indemnitee shall have reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense or (iii) the Company shall not, in fact,
have employed counsel to assume Indemnitee’s defense of such proceeding, then the Company shall
advance, and/or indemnify Indemnitee for, the fees of Indemnitee’s counsel to the extent the
Company would be required to do so under the terms of this Agreement (without regard to the
provisions of this Section 7.3). The Company shall not be required to obtain the consent of
Indemnitee to the settlement of any proceeding as to which the Company has assumed the defense if
the Company assumes the full
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and sole responsibility and liability for such settlement and the settlement grants Indemnitee
a complete and unqualified release in respect of the potential liability arising from such
proceeding.
8. Determination of Right to Indemnification.
8.1 Successful Defense. To the extent Indemnitee has been successful on the merits or
otherwise in the defense of any proceeding referred to in Section 4.1 or 4.2 of this Agreement or
in the defense of any claim, issue or matter described therein, then subject to the provisions of
Section 4.4, the Company shall indemnify Indemnitee against expenses actually and reasonably
incurred by him in connection with the investigation, defense or appeal of such proceeding, or such
claim, issue or matter, as the case may be.
8.2 Other Circumstances. In the event that Indemnitee seeks indemnification under
Section 4.1 or 4.2 of this Agreement and Section 8.1 is inapplicable to such claim for
indemnification, or does not apply to the entire proceeding, then subject to the provisions of
Section 4.4, the Company shall indemnify Indemnitee as provided in Section 4.1 or 4.2, as
applicable, unless the Company shall claim and prove by clear and convincing evidence to a forum
listed in Section 8.3 that Indemnitee has not met the applicable standard of conduct required to
entitle Indemnitee to indemnification under Section 4.1 or 4.2, as applicable.
8.3 Selection of Forum to Determine Entitlement to Indemnification. In the event that
the Company claims that Indemnitee is not entitled to indemnification pursuant to Section 4.1 or
4.2, then Indemnitee shall be entitled to select the forum in which the validity of the Company’s
claim under Section 8.2 that Indemnitee is not entitled to indemnification will be heard by one (1)
forum from among the following, except that Indemnitee can select a forum
consisting of the stockholders of the Company only with the prior written approval of the Company
that is duly authorized by the Board:
(a) A majority of a quorum of the Board consisting of directors who are not parties to the
proceeding for which indemnification is being sought;
(b) The stockholders of the Company;
(c) Independent Counsel mutually agreed upon by Indemnitee and the Board, which Independent
Counsel shall make such determination in a written opinion;
(d) A panel of three (3) arbitrators, one of whom is selected by the Company, another of whom
is selected by Indemnitee and the last of whom is selected by the first two arbitrators so
selected, who will conduct the arbitration in San Jose, California pursuant to the Commercial
Arbitration Rules of the American Arbitration Association; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of the subject matter
and the parties.
8.4 Submission of Claim by Company. As soon as practicable, and in no event later
than thirty (30) days after the forum has been selected pursuant to Section 8.3, the Company shall,
at its own expense, submit to the selected forum its claim that the Indemnitee is
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not entitled to indemnification, and the Company shall act in the utmost good faith to assure
Indemnitee a complete opportunity to defend against such claim.
8.5 Further Proceedings. If the forum selected in accordance with Section 8.3 is not
a court, then after the final decision of such forum is rendered, the Company or Indemnitee shall
have the right to apply to the Court of Chancery of Delaware, the court in which the proceeding
giving rise to Indemnitee’s claim for indemnification is or was pending or any other court having
jurisdiction of the subject matter and the parties, for the purpose of appealing the decision of
such forum, provided that such right is executed within sixty (60) days after the final
decision of such forum is rendered. If the forum selected in accordance with Section 8.3 is a
court, then the rights of the Company or the Indemnitee to appeal any decision of such court shall
be governed by the applicable laws and rules governing appeals of the decision of such court.
8.6 Court Proceeding. If the forum selected by Indemnitee pursuant to Section 8.3 to
determine whether Indemnitee is entitled to indemnification is not a court described in Section
8.3(e) and such forum shall not have made a determination within 120 days after the date on which
the Company is required by Section 8.3 to submit to such forum its claim that Indemnitee is not
entitled to such indemnification, then Indemnitee shall be entitled to apply to the Court of
Chancery of Delaware or other court described in Section 8.3(e) to have Indemnitee’s request for
indemnification adjudicated by such court in lieu of having the determination made by such forum.
The Company shall not oppose Indemnitee’s right to seek any such adjudication.
8.7 No Presumption. For purposes of this Agreement, the termination of any proceeding
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 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 this Agreement or applicable law.
8.8 Section 8 Matters. Notwithstanding any other provision in this Agreement to the
contrary, the Company shall indemnify Indemnitee against all expenses incurred by Indemnitee in
connection with any hearing or proceeding under this Section 8 involving Indemnitee and against all
expenses incurred by Indemnitee in connection with any other proceeding between the Company and
Indemnitee involving the interpretation or enforcement of the rights of Indemnitee under this
Agreement unless a court of competent jurisdiction finds that each of the material claims and/or
defenses of Indemnitee in any such proceeding was frivolous or not made in good faith.
9. Exceptions. Notwithstanding any other provision of this Agreement to the contrary, the
Company shall not be obligated pursuant to the terms of this Agreement:
9.1 Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee
with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way
of defense, except with respect to (a) proceedings specifically authorized by the Board or
(b) (subject to the provisions of Section 6.2 and Section 8.8) proceedings brought by
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Indemnitee to establish or enforce a right to indemnification and/or advancement of expenses
arising under this Agreement, the charter documents of the Company or any subsidiary or any statute
or law; or
9.2 Unauthorized Settlements. To indemnify Indemnitee hereunder for any amounts paid
in settlement of a proceeding unless the Company consents in advance in writing to such settlement,
which consent shall not be unreasonably withheld; or
9.3 Certain Securities Law Actions. To indemnify or advance expenses to Indemnitee on
account of any suit in which judgment is rendered against Indemnitee for an accounting of profits
made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Exchange Act, or similar provisions of any federal, state or
local statutory law or Section 306(a) of the Xxxxxxxx-Xxxxx Act of 2002; or
9.4 Unlawful Indemnification. To indemnify Indemnitee if a final decision by a court
having jurisdiction in the matter shall determine that such indemnification is not lawful. In this
respect, the Company and Indemnitee have been advised that the Securities and Exchange Commission
takes the position that indemnification for liabilities arising under the federal securities laws
is against public policy and is, therefore, unenforceable and that claims for indemnification
should be submitted to appropriate courts for adjudication.
10. Non-Exclusivity. The provisions for indemnification and advancement of expenses set forth
in this Agreement shall not be deemed exclusive of any other rights which Indemnitee may have under
any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote of the
Company’s stockholders or disinterested directors, other agreements or otherwise, both as to action
in Indemnitee’s official capacity and to action in another capacity while occupying his position as
an agent of the Company, and Indemnitee’s rights hereunder shall continue after Indemnitee has
ceased acting as an agent of the Company and shall inure to the benefit of Indemnitee’s heirs,
executors and administrators.
11. General Provisions.
11.1 Interpretation of Agreement. It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification and advancement of
expenses to Indemnitee to the fullest extent now or hereafter permitted by law, except as expressly
limited herein.
11.2 Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, then: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including, without limitation,
all portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable that are not themselves invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraphs of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
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manifested by the provision held invalid, illegal or unenforceable and to give effect to
Section 11.1.
11.3 Modification and Waiver. 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
provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver.
11.4 Subrogation. In the event of a payment by the Company under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all documents required and shall do all acts that may be necessary or
desirable to secure such rights and to enable the Company effectively to bring suit to enforce such
rights.
11.5 Counterparts. This Agreement may be executed in one or more counterparts, which
shall together constitute one agreement.
11.6 Successors and Assigns. The terms of this Agreement shall bind, and shall inure
to the benefit of, the successors and assigns of the parties hereto; provided
however that, Indemnitee may not assign Indemnitee’s rights under this Agreement
except by will or the laws of descent and distribution.
11.7 Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given: (a) if delivered by hand and signed
for by the party addressee; or (b) if mailed by certified or registered mail, with postage prepaid,
on the third business day after the mailing date; or (c) if delivered by nationally recognized
overnight express courier to an address within the United States on the next business day after the
deposit with such courier; or (d) if delivered by internationally recognized international express
courier service to address outside the United States on the second business day after deposit with
such courier. Addresses for notice to either party are as shown on the signature page of this
Agreement or as subsequently modified by written notice.
11.8 Governing Law. This Agreement shall be governed exclusively by and construed
according to 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 giving effect to
that body of laws pertaining to conflict of laws.
11.9 Consent to Jurisdiction. The Company and 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 that arises out of or relates to this Agreement.
11.10 Attorneys’ Fees. In the event Indemnitee is required to bring any action to
enforce rights under this Agreement Indemnitee shall be entitled to all reasonable fees and
expenses in bringing and pursuing such action, unless a court of competent jurisdiction finds each
of the material claims of Indemnitee in any such action was frivolous and not made in good faith.
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11.11 Fees of Independent Counsel. The Company agrees to pay the reasonable fees and
expenses of the Independent Counsel actually and reasonably incurred by such Independent Counsel in
performing any function or service in accordance with this Agreement which expressly contemplates
the participation of Independent Counsel.
11.12 References. All references herein to “Sections” shall (unless otherwise
expressly indicated) refer to Sections of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have entered into this Indemnity Agreement effective as
of the date first written above.
| ASTHMATX, INC.: | INDEMNITEE: | |||||||
By: |
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Name:
|
Name: | |||||||
Title: |
||||||||
| Address: 0000 Xxxxx Xxxx Xxx | Xxxxxxx: | |||||||
Xxxxxxxx Xxxx, XX 00000
|
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[Signature Page to Asthmatx, Inc. Indemnity Agreement]
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