Exhibit 10.4
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, dated as of September 26, 2003, is made
and entered into between Rubicon Medical Corporation, a Delaware corporation
(the "Company"), and Xxxxxxx X. Xxxxxx ("Indemnitee").
RECITALS
A. Indemnitee is a director or officer of the Company and in such
capacity is performing valuable services for the Company.
B. The Company and Indemnitee recognize the difficulty in obtaining
directors' and officers' liability insurance, the significant cost of such
insurance and the periodic reduction in the coverage of such insurance.
C. The Company and Indemnitee further recognize the substantial
increase in litigation subjecting directors and officers to expensive litigation
risks at the same time such liability insurance is being severely limited.
D. The Company's bylaws (the "Bylaws") provide for the indemnification
of the Company's directors and officers as permitted by Section 145 of the
General Corporation Law of Delaware (the "Statute").
E. The Bylaws and the Statute specifically provide that they are not
exclusive, and they thereby contemplate that contracts may be entered into
between the Company and its directors and officers with respect to
indemnification of such directors and officers.
F. To induce Indemnitee to serve or continue to serve the Company, the
Company desires to confirm the contract indemnification rights provided in the
Bylaws and agrees to provide Indemnitee with the benefits contemplated by this
Agreement.
AGREEMENTS
1. Indemnity of Indemnitee
1.1. Scope.
The Company agrees to hold harmless and indemnify Indemnitee to the
full extent permitted by law, notwithstanding that the basis for such
indemnification is not specifically enumerated in this Agreement, the Company's
Certificate of Incorporation, the Bylaws, any other statute or otherwise. In the
event of any change, after the date of this Agreement, in any applicable law,
statute or rule regarding the right of a Delaware corporation to indemnify a
member of its Board of Directors or an officer, such change, to the extent it
would expand Indemnitee's rights hereunder, shall be included within
Indemnitee's rights and the Company's obligations hereunder, and, to the extent
it would narrow Indemnitee's rights or the Company's obligations hereunder,
shall be excluded from this Agreement; provided, however, that any change
required by applicable laws, statutes or rules to be applied to this Agreement
shall be so applied regardless of whether the effect of such change is to narrow
Indemnitee's rights or the Company's obligations hereunder.
1.2. Nonexclusivity.
The indemnification provided by this Agreement shall not be deemed
exclusive of any rights to which Indemnitee may be entitled under the Company's
Certificate of Incorporation, the Bylaws, any agreement, any vote of
stockholders or disinterested directors, the Statute or otherwise, whether as to
action in Indemnitee's official capacity or otherwise.
1.3. Included Coverage.
If Indemnitee was or is made a party, or is threatened to be made a
party, to or is otherwise involved (including, without limitation, as a witness)
in any Proceeding (as defined below), the Company shall hold harmless and
indemnify Indemnitee from and against any and all losses, claims, damages,
liabilities or expenses, including, without limitation, attorneys' fees,
judgments, fines, witness fees, amounts paid in settlement and other expenses
incurred in connection with such Proceeding (collectively, "Damages").
1.4. Definition of Proceeding.
For purposes of this Agreement, "Proceeding" shall mean any completed,
actual, pending or threatened action, suit, claim or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of the Company) and whether formal or informal, in which Indemnitee is,
was or becomes involved by reason of the fact that Indemnitee is or was a
director, officer, employee, trustee or agent of the Company or that, being or
having been such a director, officer, employee, trustee or agent, Indemnitee is
or was serving at the request of the Company as a director, officer, employee,
trustee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise (collectively, a "Related Company"), including service
with respect to an employee benefit plan, whether the basis of such proceeding
is alleged action (or inaction) by Indemnitee in an official capacity as a
director, officer, employee, trustee or agent or in any other capacity while
serving as a director, officer, employee, trustee or agent; provided, however,
that, except with respect to an action to enforce the provisions of this
Agreement, "Proceeding" shall not include any action, suit, claim or proceeding
instituted by or at the direction of Indemnitee, unless such action, suit, claim
or proceeding is or was authorized by the Company's Board of Directors.
1.5. Determination of Entitlement.
In the event that a determination of Indemnitee's entitlement to
indemnification is required pursuant to Section 145(d) of the Statute or a
successor statute or pursuant to other applicable law, the appropriate decision
maker shall make such determination; provided, however, that Indemnitee shall
initially be presumed in all cases to be entitled to indemnification and
Indemnitee may establish a conclusive presumption of any fact necessary to such
a determination by delivering to the Company a declaration made under penalty of
perjury that such fact is true.
1.6. Contribution.
If the indemnification provided under Section 1.1 is unavailable by
reason of a court decision, based on grounds other than any of those set forth
in paragraphs (b) through (d) of Section 4.1, then, in respect of any 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 Damages
(including attorneys' fees) actually and reasonably incurred and paid or payable
by Indemnitee in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and Indemnitee on the other
from the transaction from which such Proceeding arose and (ii) the relative
fault of the Company on the one hand and of Indemnitee on the other in
connection with the events that resulted in such Damages as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of Indemnitee on the other 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 Damages.
The Company agrees that it would not be just and equitable if contribution
pursuant to this Section 1.6 were determined by pro rata allocation or any other
method of allocation that does not take account of the foregoing equitable
considerations.
1.7. Survival.
The indemnification and contribution provided under this Agreement
shall apply to any and all Proceedings, notwithstanding that Indemnitee has
ceased to serve the Company or a Related Company, and shall continue so long as
Indemnitee shall be subject to any possible Proceeding, whether civil, criminal
or investigative, by reason of the fact that Indemnitee was a director or
officer of the Company or serving in any other capacity referred to in Section
1.4 of this Agreement.
2. Advancement of Expenses.
2.1. Generally.
The right to indemnification of Damages conferred by Section 1 shall
include the right to have the Company pay Indemnitee's expenses in any
Proceeding as such expenses are incurred and in advance of such Proceeding's
final disposition (such right, an "Expense Advance").
2.2. Conditions to Advancement of Expenses.
The Company's obligation to provide an Expense Advance is subject to
the following conditions:
2.2.1. Undertaking.
If the Proceeding arose in connection with Indemnitee's service as a
director or officer of the Company (and not in any other capacity in which
Indemnitee rendered service, including service to any Related Company), then
Indemnitee or Indemnitee's representative shall have executed and delivered to
the Company an undertaking, which need not be secured and shall be accepted
without reference to Indemnitee's financial ability to make repayment, by or on
behalf of Indemnitee, to repay all Expense Advances if it shall ultimately be
determined by a final, unappealable decision rendered by a court having
jurisdiction over the parties that Indemnitee is not entitled to be indemnified
by the Company.
2.2.2. Cooperation.
Indemnitee shall give the Company such information and cooperation as
it may reasonably request and as shall be within Indemnitee's power.
3. Enforcement Procedures.
3.1. Enforcement.
In the event that any claim for indemnity, whether an Expense Advance
or otherwise, is made hereunder and is not paid in full within 60 days after
written notice of such claim is delivered to the Company, Indemnitee may, but
need not, at any time thereafter bring suit against the Company to recover the
unpaid amount of the claim (an "Enforcement Action").
3.2. Presumptions in Enforcement Action.
In any Enforcement Action, the following presumptions (and limitation
on presumptions) shall apply:
(a) The Company expressly affirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereunder to induce
Indemnitee to continue as a director or officer of the Company;
(b) It is the parties' intention that if the Company contests
Indemnitee's right to indemnification, the question of indemnification shall be
decided by the court and neither (i) the failure of the Company (including the
Company's Board of Directors, independent or special legal counsel or the
Company's stockholders) to have made a determination prior to the commencement
of the Enforcement Action that indemnification of Indemnitee is proper in the
circumstances, nor (ii) an actual determination by the Company (including the
Company's Board of Directors, independent or special legal counsel or the
Company's stockholders) that Indemnitee is not entitled to indemnification,
shall be a defense to the Enforcement Action or create a presumption that
Indemnitee is not entitled to indemnification hereunder; and
(c) If Indemnitee is or was serving as a director or officer of a
corporation of which a majority of the shares entitled to vote in the election
of its directors is held by the Company or in a management capacity in a
partnership, joint venture, trust or other enterprise of which the Company or a
wholly owned subsidiary of the Company is a general partner or has a majority
ownership, then such corporation, partnership, joint venture, trust or other
enterprise shall conclusively be deemed a Related Company and Indemnitee shall
conclusively be deemed to be serving such Related Company at the Company's
request.
3.3. Attorneys' Fees and Expenses for Enforcement Action.
In the event Indemnitee is required to bring an Enforcement Action, the
Company shall pay all of Indemnitee's fees and expenses in bringing and pursuing
the Enforcement Action (including attorneys' fees at any stage, including on
appeal); provided, however, that the Company shall not be required to provide
such payment for such attorneys' fees or expenses if a court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
in such Enforcement Action was not made in good faith.
4. Limitations on Indemnity; Mutual Acknowledgement.
4.1. Limitations on Indemnity.
No indemnity pursuant to this Agreement shall be provided by the
Company:
(a) On account of any suit in which a final, unappealable judgment is
rendered against Indemnitee for an accounting of profits made from the purchase
or sale by Indemnitee of securities of the Company in violation of the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended;
(b) For Damages that have been paid directly to Indemnitee by an
insurance carrier under a policy of directors' and officers' liability insurance
maintained by the Company;
(c) With respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(d) On account of Indemnitee's conduct which is finally adjudged to
have been intentional misconduct, a knowing violation of law, a violation of
Section 174 of the Statute or a transaction from which Indemnitee derived an
improper personal benefit; or
(e) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
4.2. Undertakings to Securities and Exchange Commission.
Indemnitee understands and acknowledges that the Company may be
required in the future to undertake with the Securities and Exchange Commission
(the "SEC") to submit in certain circumstances the question of indemnification
to a court for a determination of the Company's right under public policy to
indemnify Indemnitee.
5. Notification and Defense of Claim.
5.1. Notification.
Promptly after receipt by Indemnitee of notice of the commencement of
any Proceeding, Indemnitee shall, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company of the commencement
thereof; but the omission so to notify the Company will not, however, relieve
the Company from any liability which it may have to Indemnitee under this
Agreement unless and only to the extent that such omission can be shown to have
prejudiced the Company's ability to defend the Proceeding.
5.2. Defense of Claim.
With respect to any such Proceeding as to which Indemnitee notifies the
Company of the commencement thereof:
(a) The Company may participate therein at its own expense;
(b) The Company, jointly with any other indemnifying party similarly
notified, may assume the defense thereof, with counsel satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election so to
assume the defense thereof, the Company shall not be liable to Indemnitee under
this Agreement for any legal or other expenses (other than reasonable costs of
investigation) subsequently incurred by Indemnitee in connection with the
defense thereof unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action, or (iii) the Company shall not, in fact,
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the Company's expense. The
Company shall not be entitled to assume the defense of any Proceeding brought by
or on behalf of the Company or as to which Indemnitee shall have reasonably made
the conclusion provided for in (ii) above;
(c) The Company shall not be liable to Indemnitee under this Agreement
for any amounts paid in settlement of any Proceeding effected without its
written consent;
(d) The Company shall not settle any action or claim in any manner that
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent; and
(e) Neither the Company nor Indemnitee shall unreasonably withhold its
consent to any proposed settlement, provided that Indemnitee may withhold
consent to any settlement that does not provide a complete release of
Indemnitee.
6. Severability.
Nothing in this Agreement is intended to require or shall be construed
as requiring the Company to do or to 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 6, and if this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, the Company shall
nevertheless indemnify or make contribution to 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.
7. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of Delaware.
(b) This Agreement shall be binding on Indemnitee and on the Company
and its successors and assigns (including any transferee of all or substantially
all of its assets and any successor by merger or otherwise by operation of law),
and shall inure to the benefit of Indemnitee and Indemnitee's heirs, personal
representatives and assigns and to the benefit of the Company and its successors
and assigns. The Company shall not effect any sale of substantially all of its
assets, merger, consolidation or other reorganization in which it is not the
surviving entity, unless the surviving entity agrees in writing to assume all
such obligations of the Company under this Agreement.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
8. Notices.
All notices, claims and other communications hereunder shall be in
writing and made by hand delivery, registered or certified mail (postage
prepaid, return receipt requested), or by a commercially recognized means of
overnight delivery providing confirmation of receipt:
(a) If to the Company, to: with a copy to:
Rubicon Medical Corporation Xxxxxxx, Xxxxx & Xxxxxxx
0000 Xxxx Xxxxxxxxx Xxxxxx Post Office Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000 Xxxx Xxxx Xxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, President Attention: Xxxx X. Xxxxxxxxx, Esq.
(b) If to Indemnitee, to the address specified on the last page of this
Agreement
or to such other address as either party may from time to time furnish to the
other party by a notice given in accordance with the provisions of this Section
8. All such notices, claims and communications shall be deemed to have been duly
given if (i) personally delivered, at the time delivered, (ii) mailed, five days
after dispatched, and (iii) sent by any other means, upon receipt.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
Rubicon Medical Corporation
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Title: Chairman of the Board
INDEMNITEE:
/s/ Xxxxxxx X. Xxxxxx
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[signature of Indemnitee]
Xxxxxxx X. Xxxxxx
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[printed name of indemnitee]
Address:
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