INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Indemnification Agreement (the “Agreement”), dated as of «Date», between St. Xxxxxxx
Medical Technologies, Inc., a Delaware corporation (the “Corporation”), and «Name» (“Indemnitee”),
W I T N E S S E T H:
WHEREAS, Indemnitee is either a member of the board of directors of the Corporation (the
“Board of Directors”) or an officer of the Corporation, or both, and in such capacity or
capacities, or otherwise as an Agent (as hereinafter defined) of the Corporation, is performing a
valuable service for the Corporation; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the Corporation on the condition that he or she 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:
NOW, THEREFORE, in consideration of the premises and the covenants in this Agreement, and of
Indemnitee 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 or an officer
of the Corporation, or both, so long as Indemnitee is duly appointed or elected and qualified in
accordance with the applicable provisions of the Certificate 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 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 obligation imposed by operation of law), in which event the Corporation shall have no
obligation under this Agreement to continue Indemnitee in any such position.
2. Indemnification. Subject to the limitations set forth herein and in Section 6
hereof, the Corporation hereby agrees to indemnify Indemnitee as follows:
The Corporation shall, with respect to any Proceeding (as hereinafter defined) associated with
Indemnitee’s being an Agent of the Corporation, indemnify Indemnitee to the fullest extent
permitted by applicable law and the Certificate of Incorporation of the Corporation in effect on
the date hereof or as such law or Certificate 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 Certificate of Incorporation permitted
the Corporation to provide before such amendment). The right to indemnification conferred herein and
in the Certificate 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 Indemnitee 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 or her behalf in connection with the
investigation, defense, settlement or appeal of 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 Indemnitee 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; Letter of Credit.
(a) Advancement of Expenses. All reasonable 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. In the event that such written request shall be accompanied by an
affidavit of counsel to Indemnitee to the effect that such counsel has reviewed such expenses and
that such expenses are reasonable in such counsel’s view, then such expenses shall be deemed
reasonable in the absence of clear and convincing evidence to the contrary. 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.
(b) Letter of Credit. In order to secure the obligations of the Corporation to
indemnify and advance Expenses to Indemnitee pursuant to this Agreement, the Corporation shall
obtain at the time of any Change in Control (as hereinafter defined) an irrevocable standby letter
of credit naming Indemnitee as the sole beneficiary (the “Letter of Credit”). The Letter of Credit
shall be in an appropriate amount not less than one million dollars ($1,000,000), shall be issued
by a commercial bank headquartered in the United States having assets in excess of $10 billion and
capital according to its most recent published
reports equal to or greater than the then applicable minimum capital standards promulgated by
such bank’s primary federal regulator and shall contain terms and conditions reasonably acceptable
to Indemnitee. The Letter of Credit shall provide that Indemnitee may from time to time draw
certain amounts thereunder, upon written certification by Indemnitee to the issuer of the Letter of
Credit that (i) Indemnitee has made written request upon the Corporation for an amount not less
than the amount Indemnitee is drawing under the Letter of Credit and that the Corporation has
failed or refused to provide Indemnitee with such amount in full within thirty (30) days after
receipt of the request, and (ii) Indemnitee believes that he or she is
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entitled under the terms of
this Agreement to the amount that Indemnitee is drawing upon under the Letter of Credit. The
issuance of the Letter of Credit shall not in any way diminish the Corporation’s obligation to
indemnify Indemnitee against Expenses and Liabilities to the full extent required by this
Agreement.
(c) Term of Letter of Credit. Once the Corporation has obtained the Letter of Credit,
the Corporation shall maintain and renew the Letter of Credit or a substitute letter of credit
meeting the criteria of Section 3(b) during the term of this Agreement so that the Letter of Credit
shall have an initial term of five (5) years, be renewed for successive five-year terms, and always
have at least one (1) year of its term remaining.
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.
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.
(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:
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(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.
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 such Independent Legal Counsel or arbitrators 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.
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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 Court of Chancery of the
State of Delaware 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.
(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
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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).
10. Maintenance of Insurance. Upon the Corporation’s purchase of directors’ and
officers’ liability insurance policies covering its directors and officers, then, 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 all reasonable efforts to maintain in effect for the benefit of
Indemnitee one or more valid, binding and enforceable policies of directors’ and officers’
liability insurance providing, in all respects, coverage both in scope and amount which is no less
favorable than that provided by such preexisting policies. 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:
(i) The premium cost of maintaining such insurance is substantially disproportionate to
the amount of coverage provided thereunder; or
(ii) The protection provided by such insurance is so limited by exclusions, deductions
or otherwise that there is insufficient benefit 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).
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 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
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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:
(a) The Corporation will be entitled to participate therein at its own expense; and
(b) 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;
(ii) Indemnitee shall have reasonably concluded that counsel engaged by the Corporation
may not adequately represent Indemnitee; 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; provided, however, that
Indemnitee will not unreasonably withhold his or her 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:
(a) If to Indemnitee, to:
«Name»
«Address1»
«Address2»
«Address1»
«Address2»
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(b) If to the Corporation, to:
St. Xxxxxxx Medical Technologies, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: President & Chief Executive Officer
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: President & Chief Executive Officer
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxxxxxx X. Xxxxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxxxxxx X. Xxxxxxxx
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
Certificate 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 or was, or who has consented to serve as, a
director, officer, 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) Both (A) any “person” (as defined below) 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 20% of the total voting power represented by the
Corporation’s then outstanding voting securities; and (b) the beneficial ownership by such
person of securities representing such percentage has not been approved by a majority of the
“continuing directors” (as defined below);
(ii) 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;
(iii) A change in the composition of the Board occurs, as a result of which fewer
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than two-thirds of the incumbent directors are directors who either (A) had been directors of the
Corporation on the “look-back date” (as defined below) (the “Original Directors”) or (B)
were elected, or nominated for election, to the Board with the affirmative votes of at least
a majority in the aggregate of the Original Directors who were still in office at the time
of the election or nomination and directors whose election or nomination was previously so
approved (the “continuing directors”);
(iv) 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; or
(v) 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)
November 9, 2000 or (y) the date 24 months prior to the date of the event that may constitute a
“Change in Control.”
Any other provision of this Section 17(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, retainers, court costs, transcripts, fees of experts, witness 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,
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settlement or appeal of 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 the Court of Chancery of the State of Delaware 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 Delaware 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.
(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 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. 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.
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
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(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 Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within the State of Delaware, 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 Delaware 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 Delaware.
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.
| ST. XXXXXXX MEDICAL TECHNOLOGIES, | ||||||
| INC., a Delaware corporation | ||||||
| By | ||||||
President & Chief Executive Officer |
||||||
| INDEMNITEE: | ||||||
| «Name» | ||||||
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