EXHIBIT 10.21
INDEMNIFICATION AGREEMENT
This Agreement is made as of the _____ day of _______ 2005, by and between
NxStage Medical, Inc., a Delaware corporation (the "Corporation), and
_______________ (the "Indemnitee"), a director or officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance has been severely
limited, and
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its directors and officers, and
WHEREAS, the Indemnitee does not regard the protection available under the
Corporation's Certificate of Incorporation and insurance as adequate in the
present circumstances, and may not be willing to serve or continue to serve as a
director or officer without adequate protection, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to
serve, as a director or officer of the Corporation.
NOW THEREFORE, the Corporation and the Indemnitee do hereby agree as
follows:
1. Agreement to Serve. The Indemnitee agrees to serve or continue to serve
as a director or officer of the Corporation for so long as the Indemnitee is
duly elected or appointed or until such time as the Indemnitee tenders a
resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution proceeding,
administrative hearing or other proceeding, whether brought by or in the right
of the Corporation or otherwise and whether of a civil, criminal, administrative
or investigative nature, and any appeal therefrom.
(b) The term "Corporate Status" shall mean the status of a person
who is or was a director or officer of the Corporation, or is or was serving, or
has agreed to serve, at the request of the Corporation, as a director, officer,
partner, trustee, member, employee or agent of another corporation, partnership,
joint venture, trust, limited liability company or other enterprise.
(c) The term "Expenses" shall include, without limitation,
attorneys' fees, retainers, court costs, transcript costs, fees and expenses of
experts, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees and other disbursements or
expenses of the types customarily incurred in connection with investigations,
judicial or administrative proceedings or appeals, but shall not include the
amount of judgments,
fines or penalties against Indemnitee or amounts paid in settlement in
connection with such matters.
(d) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with respect
to any employee benefit plan; references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner such person reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Agreement.
3. Indemnification in Third-Party Proceedings. The Corporation shall
indemnify the Indemnitee in accordance with the provisions of this Paragraph 3
if the Indemnitee was or is a party to or threatened to be made a party to or
otherwise involved in any Proceeding (other than a Proceeding by or in the right
of the Corporation to procure a judgment in its favor) by reason of the
Indemnitee's Corporate Status or by reason of any action alleged to have been
taken or omitted in connection therewith, against all Expenses, judgments,
fines, penalties and amounts paid in settlement actually and reasonably incurred
by or on behalf of the Indemnitee in connection with such Proceeding, if the
Indemnitee acted in good faith and in a manner which the Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation and,
with respect to any criminal Proceeding, had no reasonable cause to believe that
his or her 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 the Indemnitee did
not act in good faith and in a manner which the Indemnitee reasonably believed
to be in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal Proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
4. Indemnification in Proceedings by or in the Right of the Corporation.
The Corporation shall indemnify the Indemnitee in accordance with the provisions
of this Paragraph 4 if the Indemnitee was or is a party to or threatened to be
made a party to or otherwise involved in any Proceeding by or in the right of
the Corporation to procure a judgment in its favor by reason of the Indemnitee's
Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by
or on behalf of the Indemnitee in connection with such Proceeding, if the
Indemnitee acted in good faith and in a manner which the Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made under this Paragraph 4 in respect
of any claim, issue, or matter as to which the Indemnitee shall have been
adjudged to be liable to the Corporation, unless, and only to the extent, that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such Expenses as the Court of
Chancery or such other court shall deem proper.
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5. Exceptions to Right of Indemnification. Notwithstanding anything to the
contrary in this Agreement, except as set forth in Paragraph 10, the Corporation
shall not indemnify the Indemnitee in connection with a Proceeding (or part
thereof) initiated by the Indemnitee unless the initiation thereof was approved
by the Board of Directors of the Corporation. Notwithstanding anything to the
contrary in this Agreement, the Corporation shall not indemnify the Indemnitee
to the extent the Indemnitee is reimbursed from the proceeds of insurance, and
in the event the Corporation makes any indemnification payments to the
Indemnitee and the Indemnitee is subsequently reimbursed from the proceeds of
insurance, the Indemnitee shall promptly refund such indemnification payments to
the Corporation to the extent of such insurance reimbursement.
6. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful, on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein, the Indemnitee shall be
indemnified against all Expenses incurred by or on behalf of the Indemnitee in
connection therewith. Without limiting the foregoing, if any Proceeding or any
claim, issue or matter therein is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition being
adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liable
to the Corporation, (iii) a plea of guilty or nolo contendere by the Indemnitee,
(iv) an adjudication that the Indemnitee did not act in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and (v) with respect to any criminal proceeding,
an adjudication that the Indemnitee had reasonable cause to believe his or her
conduct was unlawful, the Indemnitee shall be considered for the purposes hereof
to have been wholly successful with respect thereto.
7. Notification and Defense of Claim. As a condition precedent to the
Indemnitee's right to be indemnified, the Indemnitee must notify the Corporation
in writing as soon as practicable of any Proceeding for which indemnity will or
could be sought. With respect to any Proceeding of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or, except as provided below, to assume the defense thereof at its
own expense, with legal counsel reasonably acceptable to the Indemnitee. After
notice from the Corporation to the Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any legal or
other expenses subsequently incurred by the Indemnitee in connection with such
Proceeding, other than as provided below in this Paragraph 7. The Indemnitee
shall have the right to employ his or her own counsel in connection with 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 the Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (ii) counsel to the Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee in the conduct of
the defense of such Proceeding or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such Proceeding, in each of which
cases the fees and expenses of counsel for the Indemnitee shall be at the
expense of the Corporation, except as otherwise expressly provided by this
Agreement. The Corporation shall not be entitled, without the consent of the
Indemnitee, to assume the defense of any claim brought by or in the right of the
Corporation or as to which counsel for the Indemnitee shall have reasonably made
the conclusion provided for in clause (ii) above. The Corporation shall not be
required to indemnify
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the Indemnitee under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent. The Corporation shall not
settle any Proceeding in any manner which would impose any penalty or limitation
on the Indemnitee without the Indemnitee's written consent. Neither the
Corporation nor the Indemnitee will unreasonably withhold or delay their consent
to any proposed settlement.
8. Advancement of Expenses. Subject to the provisions of Paragraph 9 of
this Agreement, in the event that the Corporation does not assume the defense
pursuant to Paragraph 7 of this Agreement of any Proceeding of which the
Corporation receives notice under this Agreement, any Expenses incurred by or on
behalf of the Indemnitee in defending such Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding; provided,
however, that the payment of such Expenses incurred by or on behalf of the
Indemnitee in advance of the final disposition of such Proceeding shall be made
only upon receipt of an undertaking by or on behalf of the Indemnitee to repay
all amounts so advanced in the event that it shall ultimately be determined that
the Indemnitee is not entitled to be indemnified by the Corporation as
authorized in this Agreement. Such undertaking shall be accepted without
reference to the financial ability of the Indemnitee to make repayment.
9. Procedure for Indemnification. In order to obtain indemnification or
advancement of Expenses pursuant to Paragraphs 3, 4, 6 or 8 of this Agreement,
the Indemnitee shall submit to the Corporation a written request. Any such
indemnification or advancement of Expenses shall be made promptly, and in any
event within 30 days after receipt by the Corporation of the written request of
the Indemnitee, unless with respect to requests under Paragraphs 3, 4 or 8 the
Corporation determines within such 30-day period that the Indemnitee did not
meet the applicable standard of conduct set forth in Paragraph 3 or 4, as the
case may be. Such determination, and any determination that advanced Expenses
must be repaid to the Corporation, shall be made in each instance (a) by a
majority vote of the directors of the Corporation consisting of persons who are
not at that time parties to the Proceeding ("disinterested directors"), whether
or not a quorum, (b) by a committee of disinterested directors designated by a
majority vote of disinterested directors, whether or not a quorum, (c) if there
are no disinterested directors, or if the disinterested directors so direct, by
independent legal counsel (who may, to the extent permitted by applicable law,
be regular legal counsel to the Corporation) in a written opinion, or (d) by the
stockholders of the Corporation.
10. Remedies. The right to indemnification or advancement of Expenses as
provided by this Agreement shall be enforceable by the Indemnitee in any court
of competent jurisdiction. Unless otherwise required by law, the burden of
proving that indemnification is not appropriate shall be on the Corporation.
Neither the failure of the Corporation to have made a determination prior to the
commencement of such action that indemnification is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Corporation pursuant to Paragraph 9 that the Indemnitee has
not met such applicable standard of conduct, shall be a defense to the
Corporation's action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The Indemnitee's expenses (of the type described
in the definition of "Expenses" in Paragraph 2(c)) reasonably incurred in
connection with successfully establishing the Indemnitee's right to
indemnification, in whole or in part, in any such Proceeding shall also be
indemnified by the Corporation.
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11. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines, penalties or amounts paid in
settlement actually and reasonably incurred by or on behalf of the Indemnitee in
connection with any Proceeding but not, however, for the total amount thereof,
the Corporation shall nevertheless indemnify the Indemnitee for the portion of
such Expenses, judgments, fines, penalties or amounts paid in settlement to
which the Indemnitee is entitled.
12. Subrogation. In the event of any payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, who shall execute all papers required and
take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to enforce
such rights.
13. Term of Agreement. This Agreement shall continue until and terminate
upon the later of (a) six years after the date that the Indemnitee shall have
ceased to serve as a director or officer of the Corporation or, at the request
of the Corporation, as a director, officer, partner, trustee, member, employee
or agent of another corporation, partnership, joint venture, trust, limited
liability company or other enterprise or (b) the final termination of all
Proceedings pending on the date set forth in clause (a) in respect of which the
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by the Indemnitee pursuant to
Paragraph 10 of this Agreement relating thereto.
14. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which the Indemnitee may be entitled under the
Certification of Incorporation, the By-Laws, any other agreement, any vote of
stockholders or disinterested directors, the General Corporation Law of
Delaware, any other law (common or statutory), or otherwise, both as to action
in the Indemnitee's official capacity and as to action in another capacity while
holding office for the Corporation. Nothing contained in this Agreement shall be
deemed to prohibit the Corporation from purchasing and maintaining insurance, at
its expense, to protect itself or the Indemnitee against any expense, liability
or loss incurred by it or the Indemnitee in any such capacity, or arising out of
the Indemnitee's status as such, whether or not the Indemnitee would be
indemnified against such expense, liability or loss under this Agreement;
provided that the Corporation shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder if and to the extent
that the Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
15. No Special Rights. Nothing herein shall confer upon the Indemnitee any
right to continue to serve as an officer or director of the Corporation for any
period of time or at any particular rate of compensation.
16. Savings Clause. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify the Indemnitee as to Expenses,
judgments, fines, penalties and amounts paid in settlement with respect to any
Proceeding to the full extent permitted by any applicable portion
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of this Agreement that shall not have been invalidated and to the fullest extent
permitted by applicable law.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
18. Successors and Assigns. This Agreement shall be binding upon the
Corporation and its successors and assigns and shall inure to the benefit of the
estate, heirs, executors, administrators and personal representatives of the
Indemnitee.
19. Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
20. Modification and Waiver. This Agreement may be amended from time to
time to reflect changes in Delaware law or for other reasons. 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 nor shall any such waiver constitute a continuing waiver.
21. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (i) when
delivered by hand or (ii) if mailed by certified or registered mail with postage
prepaid, on the third day after the date on which it is so mailed:
(a) if to the Indemnitee, to:
(b) if to the Corporation, to: NxStage Medical, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial
Officer
with a copy to: NxStage Medical, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
or to such other address as may have been furnished to the Indemnitee by the
Corporation or to the Corporation by the Indemnitee, as the case may be.
22. Applicable Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware. The Indemnitee
may elect to have the right to indemnification or reimbursement or advancement
of Expenses interpreted on the basis of the applicable law in effect at the time
of the occurrence of the event or events giving rise to the applicable
Proceeding, to the extent permitted by law, or on the basis of the applicable
law in effect at the time such indemnification or reimbursement or advancement
of Expenses is
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sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of Expenses is
sought; provided, however, that if no such notice is given, and if the General
Corporation Law of Delaware is amended, or other Delaware law is enacted, to
permit further indemnification of the directors and officers, then the
Indemnitee shall be indemnified to the fullest extent permitted under the
General Corporation Law, as so amended, or by such other Delaware law, as so
enacted.
23. Enforcement. The Corporation expressly confirms and agrees that it has
entered into this Agreement in order to induce the Indemnitee to continue to
serve as an officer or director of the Corporation, and acknowledges that the
Indemnitee is relying upon this Agreement in continuing in such capacity.
24. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supercedes all prior agreements, whether oral or written, by any officer,
employee or representative of any party hereto in respect of the subject matter
contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and cancelled. For
avoidance of doubt, the parties confirm that the foregoing does not apply to or
limit the Indemnitee's rights under Delaware law or the Corporation's
Certificate of Incorporation or By-Laws.
25. Consent to Suit. In the case of any dispute under or in connection
with this Agreement, the Indemnitee may only bring suit against the Corporation
in the Court of Chancery of the State of Delaware. The Indemnitee hereby
consents to the exclusive jurisdiction and venue of the courts of the State of
Delaware, and the Indemnitee hereby waives any claim the Indemnitee may have at
any time as to forum non conveniens with respect to such venue. The Corporation
shall have the right to institute any legal action arising out of or relating to
this Agreement in any court of competent jurisdiction. Any judgment entered
against either of the parties in any proceeding hereunder may be entered and
enforced by any court of competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
NXSTAGE MEDICAL, INC.
Attest: By: ________________________
By: _______________________ Name: ________________________
Name: __________________________ Title: ________________________
INDEMNITEE:
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Name:
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