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INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of January 1, 1996, is made by
and between JALATE, LTD., a California corporation (the "Company"), and
XXXXXXXXX X. XXXXXXX, an officer of the Company (the "Indemnitee").
RECITALS
A. The Company and the Indemnitee recognize that the present state
of the law is too uncertain to provide the Company's officers and directors
with adequate and reliable advance knowledge or guidance with respect to the
legal risks and potential liabilities to which they may become personally
exposed as a result of performing their duties for the Company;
B. The Company and the Indemnitee are aware of the substantial
growth in the number of lawsuits filed against corporate officers and directors
in connection with their activities in such capacities and by reason of their
status as such;
C. The Company and the Indemnitee recognize that the cost of
defending against such lawsuits, whether or not meritorious, is typically
beyond the financial resources of most officers and directors of the Company;
D. The Company and the Indemnitee recognize that the legal risks
and potential liabilities, and the threat thereof, associated with proceedings
filed against the officers and directors of the Company bear no reasonable
relationship to the amount of compensation received by the Company's officers
and directors;
E. The Company, after reasonable investigation prior to the date
hereof, has determined that the liability insurance coverage available to the
Company as of the date hereof is inadequate, unreasonably expensive or both.
The Company believes, therefore, that the interest of the Company's
shareholders would be best served by a combination of (i) such insurance as the
Company may obtain pursuant to the Company's obligations hereunder and (ii) a
contract with its officers and directors, including the Indemnitee, to indemnify
them to the fullest extent permitted by law (as in effect on the date hereof,
or, to the extent any amendment may expand such permitted indemnification, as
hereafter in effect) against personal liability for actions taken in the
performance of their duties to the Company;
F. Section 317 of the California General Corporation Law empowers
California corporations to indemnify their officers and directors and further
states that the indemnification provided by Section 317 "shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders 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 such
additional rights to indemnification are authorized in the articles of the
corporation"; thus, Section 317 does not by
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itself limit the extent to which the Company may indemnify persons serving as
its officers and directors;
G. The Company's Articles of Incorporation and Bylaws
authorize the indemnification of the officers and directors of the Company in
excess of that expressly permitted by Section 317, subject to the limitations
set forth in Section 204(a)(11) of the California General Corporation Law, or
limitations set forth in a statute, regulation or rule promulgated by any state
or federal regulatory agency with jurisdiction over the Company's activities;
H. The Board of Directors of the Company 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 to contractually indemnify its 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, and has further concluded that the failure to provide such contractual
indemnification could result in great harm to the Company and its shareholders;
I. The Company desires and has requested the Indemnitee to
serve or continue to serve as a director or officer of the Company, free from
undue concern for the risks and potential liabilities associated with such
services to the Company; and
J. The Indemnitee is willing to serve, or continue to
serve, the Company, provided, and on the expressed condition, that he is
furnished with the indemnification provided for herein.
AGREEMENT
NOW, THEREFORE, the Company and Indemnitee agree as follows:
1. DEFINITIONS.
(a) "Expenses" means, for the purposes of this
Agreement, all direct and indirect costs of any type or nature whatsoever
(including, without limitation, any fees and disbursements of Indemnitee's
counsel, accountants and other experts and other out-of-pocket costs) actually
and reasonably incurred by the Indemnitee in connection with the investigation,
preparation, defense or appeal of a Proceeding; provided, however, that
Expenses shall not include judgments, fines, penalties or amounts paid in
settlement of a Proceeding.
(b) "Proceeding" means, for the purposes of this
Agreement, any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative (including an action bought by
or in the right of the Company) in which Indemnitee may be or may have been
involved as a party or otherwise, by reason of the fact that
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Indemnitee is or was a director or officer of the Company, by reason of any
action taken by him or of any inaction on his part, whether before or after the
date hereof, while acting as such director or officer or by reason of the fact
that he is or was serving at the request of the Company as a director, officer,
employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, or was a director or officer of the
foreign or domestic corporation which was a predecessor corporation to the
Company or of another enterprise at the request of such predecessor corporation,
whether or not he is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.
2. AGREEMENT TO SERVE. Indemnitee agrees to serve or
continue to serve as a director or officer of the Company to the best of his
abilities at the will of the Company or under separate contract, if such
contract exists, for so long as Indemnitee is duly elected or appointed and
qualified or until such time as he tenders his resignation in writing. Nothing
contained in this Agreement is intended to create in Indemnitee any right to
continued employment.
3. INDEMNIFICATION.
(a) THIRD PARTY PROCEEDINGS. The Company shall
indemnify Indemnitee against Expenses, judgements, fines, penalties or amounts
paid in settlement (if the settlement is approved in advance by the Company)
actually and reasonably incurred by Indemnitee in connection with a Proceeding
(other than a Proceeding by or in the right of the Company) if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to be in the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee's conduct was
unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in the best interests of the
Company, or, with respect to any criminal Proceeding, had no reasonable cause
to believe that Indemnitee's conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
To the fullest extent permitted by law, the Company shall indemnify Indemnitee
against Expenses and amounts paid in settlement, actually and reasonably
incurred by Indemnitee in connection with a Proceeding by or in the right of
the Company to procure a judgement in its favor if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in the best
interests of the Company and its shareholders. Notwithstanding the foregoing,
no indemnification shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged liable to the Company in the
performance of Indemnitee's duty to the Company and its shareholders unless and
only to the extent that the court in which such action or proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for
expenses and then only to the extent that the court shall determine.
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(c) SCOPE. Notwithstanding any other provision of this
Agreement but subject to Section 14(b), the Company shall indemnify the
Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by other provisions of this
Agreement, the Company's Restated Articles of Incorporation, the Company's
Bylaws or by statue.
4. LIMITATIONS ON INDEMNIFICATION. Any other provision herein to
the contrary notwithstanding, the Company shall not be obligated pursuant to
the terms of this Agreement:
(a) EXCLUDED ACTS. To indemnify Indemnitee for any acts or
omissions or transactions from which a director may not be relieved to
liability under Section 204 of the California General Corporation Law;
(b) EXCLUDED INDEMNIFICATION PAYMENTS. To indemnify or
advance Expenses in violation of any prohibition or limitation on
indemnification under the statutes, regulations or rules promulgated by any
state or federal regulatory agency having jurisdiction over the Company.
(c) 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 proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise
as required under Section 317 of the California General Corporation Law, but
such indemnification or advancement of Expenses may be provided by the Company
in specific cases if the Board of Directors has approved the initiation or
bringing of such suit;
(d) LACK OF GOOD FAITH. To indemnify Indemnitee for any
Expenses incurred by the Indemnitee with respect to any proceeding instituted
by Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous;
(e) INSURED CLAIMS. 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) which have been paid directly to or on behalf of Indemnitee by an
insurance carrier under a policy of directors' and officers' liability
insurance maintained by the Company or any other policy of insurance maintained
by the Company or Indemnitee;
(f) CLAIMS UNDER SECTION 16(b). To indemnify Indemnitee
for Expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
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5. DETERMINATION OF RIGHT TO INDEMNIFICATION.
Upon receipt of a written claim addressed to the Board of
Directors for indemnification pursuant to Section 3, the Company shall
determine by any of the methods set forth in Section 317(e) of the California
General Corporation Law whether Indemnitee has met the applicable standards of
conduct which makes it permissible under applicable law to indemnify
Indemnitee. If a claim under Section 3 is not paid in full by the Company
within ninety (90) days after such written claim has been received by the
Company, the Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim and, unless such action is
dismissed by the court as frivolous or brought in bad faith, the Indemnitee
shall be entitled to be paid also the expense of prosecuting such claim. The
court in which such action is brought shall determine whether Indemnitee or the
Company shall have the burden of proof concerning whether Indemnitee has or
has not met the applicable standard of conduct.
6. ADVANCEMENT AND REPAYMENT OF EXPENSES.
Subject to Section 4 hereof, the Expenses incurred by
Indemnitee in defending and investigating any Proceeding shall be paid by the
Company in advance of the final disposition of such Proceeding within 30 days
after receiving from Indemnitee the copies of invoices presented to Indemnitee
for such Expenses, if Indemnitee shall provide an undertaking to the Company to
repay such amount to the extent it is ultimately determined that Indemnitee is
not entitled to indemnification. In determining whether or not to make an
advance hereunder, the ability of Indemnitee to repay shall not be a factor.
Notwithstanding the foregoing, in a proceeding brought by the Company directly,
in its own right (as distinguished from an action bought derivatively or by any
receiver or trustee), the Company shall not be required to make the advances
called for hereby if the Board of Directors determines, in its sole discretion,
that it does not appear that Indemnitee has met the standards of conduct which
make it permissible under applicable law to indemnify Indemnitee and the
advancement of Expenses would not be in the best interests of the Company and
its shareholders.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled
under any provision of this Agreement to indemnification or advancement by the
Company of some or a portion of any Expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, penalties, and
amounts paid in settlement) incurred by him in the investigation, defense,
settlement or appeal of a Proceeding, but is not entitled to indemnification or
advancement of the total amount thereof, the Company shall nevertheless
indemnify or pay advancements to the Indemnitee for the portion of such
Expenses or liabilities to which the Indemnitee is entitled.
8. NOTICE TO COMPANY BY INDEMNITEE. Indemnitee shall
notify the Company in writing of any matter with respect to which Indemnitee
intends to seek indemnification hereunder as soon as reasonably practicable
following the receipt by Indemnitee of written notice thereof; provided,
however, that any delay in so notifying the Company shall not constitute a
waiver by Indemnitee of his rights hereunder. The written notification to the
Company shall be
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addressed to the Board of Directors and shall include a description of the
nature of the Proceeding and the facts underlying the Proceeding and be
accompanied by copies of any documents filed with the court in which the
Proceeding is pending. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
9. MAINTENANCE OF LIABILITY INSURANCE.
(a) Subject to Section 4 hereof, the Company hereby
agrees that so long as Indemnitee shall continue to serve as a director or
officer of the Company and thereafter so long as Indemnitee shall be subject to
any possible Proceeding, the Company, subject to Section 9(b), shall use its
best efforts to obtain and maintain in full force and effect directors' and
officers' liability insurance ("D&O Insurance") which provides Indemnitee the
same rights and benefits as are accorded to the most favorably insured of the
Company's directors, if Indemnitee is a director; or of the Company's
officers, if Indemnitee is not a director of the Company but is an officer.
(b) Notwithstanding the foregoing, the Company
shall have no obligation to obtain or maintain D&O Insurance if the Company
determines in good faith that such insurance is not reasonably available, the
premium costs for such insurance are disproportionate to the amount of coverage
provided, the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit, or the Indemnitee is covered by similar
insurance maintained by a subsidiary or parent of the Company.
(c) Notice to Insurers. If, at the time of the
receipt of a notice of a claim pursuant to Section 8 hereof, the Company has
D&O Insurance in effect, the Company shall give prompt notice of the
commencement of such Proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such Proceeding in
accordance with the terms of such policies.
10. DEFENSE OF CLAIM. In the event that the Company shall
be obligated under Section 6 hereof to pay the Expenses of any Proceeding
against Indemnitee, the Company, if appropriate, shall be entitled to assume
the defense of such Proceeding, with counsel approved by Indemnitee, which
approval shall not be unreasonably withheld, 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 retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this Agreement for
any fees of counsel subsequently incurred by Indemnitee with respect to the
same Proceeding, provided that (i) Indemnitee shall have the right to employ
his counsel in any such Proceeding at Indemnitee's expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the
Company, or (B) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and the Indemnitee in the conduct of
such defense or (C) the Company
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shall not, in fact, have employed counsel to assume the defense of such
Proceeding, then the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company.
11. ATTORNEYS' FEES. In the event that Indemnitee or the
Company institutes an action to enforce or interpret any terms of this
Agreement, the Company shall reimburse Indemnitee for all of the Indemnitee's
reasonable fees and expenses in bringing and pursuing such action or defense,
unless as part of such action or defense, a court of competent jurisdiction
determines that the material assertions made by Indemnitee as a basis for such
action or defense were not made in good faith or were frivolous.
12. CONTINUATION OF OBLIGATIONS. All agreements and
obligations of the Company contained herein shall continue during the period
the Indemnitee is a director or officer of the Company, or is or was serving at
the request of the Company as a director, officer, fiduciary, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
and shall continue thereafter so long as the Indemnitee shall be subject to any
possible proceeding by reason of the fact that Indemnitee served in any
capacity referred to herein.
13. SUCCESSORS AND ASSIGNS. This Agreement establishes
contract rights that shall be binding upon, and shall inure to the benefit of,
the successors, assigns, heirs and legal representatives of the parties hereto.
14. NON-EXCLUSIVITY.
(a) The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed to be
exclusive of any other rights that the Indemnitee may have under any provision
of law, the Company's Restated Articles of Incorporation or Bylaws, the vote of
the Company's shareholders or disinterested directors, other agreements or
otherwise, both as to action in his official capacity and action in another
capacity while occupying his position as a director or officer of the Company.
(b) In the event of any changes, after the date of
this Agreement, in any applicable law, statute, or rule which expand the right
of a California corporation to indemnify its officers and directors, the
Indemnitee's rights and the Company's obligations under this Agreement shall be
expanded to the full extent permitted by such changes. In the event of any
changes in any applicable law, statute or rule, which narrow the right of a
California corporation to indemnify a director or officer, such changes, to the
extent not otherwise required by such law, statute or rule to be applied to
this Agreement, shall have no effect on this Agreement or the parties' rights
and obligations hereunder.
15. EFFECTIVENESS OF AGREEMENT. To the extent that the
indemnification permitted under the terms of certain provisions of this
Agreement exceeds the scope of the indemnification provided for in the
California General Corporation Law, such provisions shall not be effective
unless and until the Company's Restated Articles of Incorporation authorize
such additional rights of indemnification. In all other respects, the balance
of this Agreement shall
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be effective as of the date set forth on the first page and may apply to acts
of omissions of Indemnitee which occurred prior to such date if Indemnitee was
an officer, director, employee or other agent of the Company, or was serving at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, at the time
such act or omission occurred.
16. SEVERABILITY. Nothing in this Agreement is intended to
require or shall be construed as requiring the Company to do or fail to do any
act in violation of applicable law. The Company's inability, pursuant to court
order, to perform its obligations under this Agreement shall not constitute a
breach of this Agreement. The provisions of this Agreement shall be severable
as provided in this Section 16. If this Agreement or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted by
any applicable portion of this Agreement that shall not have been invalidated,
and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
17. GOVERNING LAW. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of California. To the extent
permitted by applicable law, the parties hereby waive any provisions of law
which render any provision of this Agreement unenforceable in any respect.
18. NOTICE. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed duly
given (i) if delivered by hand and receipted for by the party addressee or (ii)
if mailed by certified or registered mail with postage prepaid, on the third
business day after the mailing date. Addresses for notice to either party are
as shown on the signature page of this Agreement, or as subsequently modified
by written notice.
19. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee
acknowledge that in certain instances, federal law or applicable public policy
may prohibit the Company from indemnifying its directors and officers under
this Agreement or otherwise. Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with the
appropriate state or federal regulatory agency to submit for approval any
request for indemnification, and has undertaken or may be required in the
future to undertake with the Securities and Exchange Commission to submit the
question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee.
20. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall constitute an original.
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21. AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year set forth above.
JALATE, LTD.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
By [SIG]
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INDEMNITEE:
/s/ XXXXXXXXX X. XXXXXXX
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XXXXXXXXX X. XXXXXXX
000 Xxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxxxx 00000
