EXHIBIT 10.14
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made this ____ day of ___________,
200__, between Micrus Corporation, a Delaware corporation (the "Company"), and
____________ (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the Indemnitee is a director and/or officer of the Company.
WHEREAS, highly competent persons have become more reluctant to
serve publicly-held corporations as directors or in other capacities unless they
are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the corporation.
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's continued
service to the Company in an effective manner and Indemnitee's reliance on the
provisions of the Company's Certificate of Incorporation ("Certificate of
Incorporation") and the Company's Bylaws (the "Bylaws") requiring
indemnification of the Indemnitee to the fullest extent permitted by law, and in
part to provide Indemnitee with specific contractual assurance that the
protection promised by such Certificate of Incorporation and Bylaws will be
available to Indemnitee (regardless of, among other things, any amendment to or
revocation of such Certificate of Incorporation or Bylaws or any change in the
composition of the Company's Board of Directors or acquisition transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to Indemnitee to the
fullest extent (whether partial or complete) permitted by law and as set forth
in this Agreement.
WHEREAS, the Certificate of Incorporation, the Bylaws and the
General Corporation Law of the State of Delaware ("DGCL") expressly provide that
the indemnification provisions set forth therein are not exclusive and thereby
contemplate that contracts may be entered into between the Company and members
of the board of directors, officers and other persons with respect to
indemnification.
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance expenses on behalf
of, such persons to the fullest extent permitted by applicable law so that they
will serve or continue to serve the Company free from undue concern that they
will not be so indemnified.
WHEREAS, this Agreement is a supplement to and in furtherance of the
Certificate of Incorporation and Bylaws and any resolutions adopted pursuant
thereto and shall not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of the premises and of Indemnitee
agreeing to serve or continuing to serve the Company directly or, at its
request, with another enterprise, and intending to be legally bound hereby, the
parties hereto agree as follows:
Section 1. Basic Indemnification Agreement. (a) In the event
Indemnitee was, is or becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant in, a Claim
(as defined in Section 9(b) herein) by reason of (or arising in part out of) an
Indemnifiable Event (as defined in Section 9(d) herein), the Company shall
indemnify Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than 30 days after written demand is
presented to the Company, against any and all Expenses (as defined in Section
9(c) herein), judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection therewith) of such Claim actually and reasonably incurred by or on
behalf of Indemnitee in connection with such Claim and any federal, state, local
or foreign taxes imposed on Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement. If requested by Indemnitee in
writing, the Company shall advance (within ten business days of such written
request) any and all Expenses to Indemnitee (an "Expense Advance").
Notwithstanding anything in this Agreement to the contrary, and except as
provided in Section 3, prior to a Change of Control (as defined in Section 9
herein) and except as set forth in Sections 1(b) and 7, Indemnitee shall not be
entitled to indemnification pursuant to this Agreement in connection with any
Claim (i) initiated by Indemnitee against the Company or any director or officer
of the Company unless the Company has joined in or consented to the initiation
of such Claim; (ii) made on account of Indemnitee's conduct which constitutes a
breach of Indemnitee's duty of loyalty to the Company or its stockholders or is
an act or omission not in good faith or which involves intentional misconduct or
a knowing violation of the law; or (iii) 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.
(b) Notwithstanding the foregoing, (i) the indemnification
obligations of the Company under Section 1(a) shall be subject to the condition
that the Reviewing Party shall not have determined (in a written opinion, in any
case in which the special independent counsel referred to in Section 2 hereof is
involved) that Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make an Expense
Advance pursuant to Section 1(a) shall be subject to the condition that the
Company receives an undertaking that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed
by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has commenced legal
proceedings in the Court of Chancery of the State of Delaware (the "Delaware
Court") to secure a determination that Indemnitee should be indemnified under
applicable law, any determination made by the Reviewing Party that Indemnitee
would not be permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the Company for any
Expense Advance until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances
shall be unsecured and no interest
2
shall be charged thereon. If there has not been a Change in Control, the
Reviewing Party shall be selected by the Board of Directors, and if there has
been such a Change in Control, the Reviewing Party shall be the special
independent counsel referred to in Section 2 hereof. If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or in
part under applicable law, Indemnitee shall have the right to commence
litigation in the Delaware Court seeking an initial determination by the court
or challenging any such determination by the Reviewing Party or any aspect
thereof and the Company hereby consents to service of process and to appear in
any such proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee. The Company shall
indemnify Indemnitee for Expenses incurred by Indemnitee in connection with the
successful establishment or enforcement, in whole or in part, by Indemnitee of
Indemnitee's right to indemnification or advances.
Section 2. Change in Control. The Company agrees that if there is a
Change in Control of the Company (other than a Change in Control which has been
approved by two- thirds or more of the Company's Board of Directors who were
directors immediately prior to such Change in Control) then with respect to all
matters thereafter arising concerning the rights of Indemnitee to indemnity
payments and Expense Advances under this Agreement or any other agreement, the
Bylaws or Certificate of Incorporation now or hereafter in effect relating to
Claims for Indemnifiable Events, the Company shall seek legal advice only from
special independent counsel selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld or delayed) and who has not
otherwise performed services for the Company within the last five years (other
than in connection with such matters) or for Indemnitee. In the event that
Indemnitee and the Company are unable to agree on the selection of the special
independent counsel, such special independent counsel shall be selected by lot
from among at least five law firms with offices in the State of Delaware having
more than fifty attorneys, having a rating of "av" or better in the then current
Martindale Xxxxxxx Law Directory and having attorneys which specialize in
corporate law. Such selection shall be made in the presence of Indemnitee (and
his legal counsel or either of them, as Indemnitee may elect). Such counsel,
among other things, shall, within 90 days of its retention, render its written
opinion to the Company and Indemnitee as to whether and to what extent
Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the special independent counsel
referred to above and to fully indemnify such counsel against any and all
expenses (including attorneys' fees), claims, liabilities, and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
Section 3. Indemnification for Additional Expenses. The Company
shall indemnify Indemnitee against any and all expenses (including attorneys'
fees) and, if requested by Indemnitee in writing, shall (within ten business
days of such written request) advance such expenses to Indemnitee, which are
incurred by Indemnitee in connection with any Claim asserted against or action
brought by Indemnitee for (i) indemnification or advance payment of Expenses by
the Company under this Agreement or any other agreement, the Bylaws or
Certificate of Incorporation now or hereafter in effect relating to Claims for
Indemnifiable Events and/or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the
3
Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance recovery,
as the case may be. The Indemnitee shall qualify for advances solely upon the
execution and delivery to the Company of an undertaking providing that the
Indemnitee undertakes to repay the advance to the extent that it is ultimately
determined that the Indemnitee is not entitled to be indemnified by the Company.
Section 4. Partial Indemnity, Etc. If Indemnitee is entitled under
any provisions of this Agreement to indemnification by the Company of some or a
portion of the Expenses, liabilities, judgments, fines, penalties and amounts
paid in settlement of a Claim but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any or all Claims relating in whole or
in part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses incurred in connection therewith. In connection with any
determination by the Reviewing Party or otherwise as to whether Indemnitee is
entitled to be indemnified hereunder the burden of proof shall be on the Company
to establish that Indemnitee is not so entitled.
Section 5. No Presumption. For purposes of this Agreement, the
termination of any action, suit or proceeding by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief.
Section 6. Notification and Defense of Claim. Within 30 days after
receipt by Indemnitee of notice of the commencement of a Claim which may involve
an Indemnifiable Event, Indemnitee will, if a claim in respect thereof is to be
made against the Company under this Agreement, submit to the Company a written
notice identifying the proceeding, but the omission so to notify the Company
will not relieve it from any liability which it may have to Indemnitee under
this Agreement unless the Company is materially prejudiced by such lack of
notice. With respect to any such Claim as to which Indemnitee notifies the
Company of the commencement thereof:
(a) the Company will be entitled to participate therein at its own
expense;
(b) except as otherwise provided below, to the extent that it may
wish, the Company jointly with any other indemnifying party similarly notified
will be entitled to assume the defense thereof, with counsel satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election to
assume the defense thereof, the Company will not be liable to Indemnitee under
this Agreement for any legal or other 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 its own counsel in such action, suit or proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of Indemnitee
4
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 the 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 expense of the Company. The Company
shall not be entitled to assume the defense of any claim brought by or on behalf
of the Company or as to which Indemnitee shall have made the conclusion provided
for in clause (ii) above; and
(c) the Company shall not be liable to indemnify Indemnitee under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any action or
claim in any manner which would impose any penalty or limitation on Indemnitee
without Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold or delay their consent to any proposed settlement.
Section 7. Non-exclusivity, Etc. The rights of Indemnitee hereunder
shall be in addition to any other rights Indemnitee may have under the
Certificate of Incorporation, the Bylaws, the DGCL, any agreement, a vote of the
stockholders, a resolution of directors or otherwise. No amendment, alteration
or repeal of this Agreement or of any provision hereof shall limit or restrict
any right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee acting on behalf of the Company and at the request of
the Company prior to such amendment, alteration or repeal. To the extent that a
change in the DGCL (whether by statute or judicial decision), the Certificate of
Incorporation or the Bylaws permits greater indemnification by agreement than
would be afforded currently under the Certificate of Incorporation, the Bylaws
and this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change. No
right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
Section 8. Liability Insurance. To the extent the Company maintains
an insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies in accordance
with its or their terms to the maximum extent of the coverage available for any
Company director or officer. If, at the time the Company receives notice from
any source of a Claim as to which Indemnitee is a party or a participant (as a
witness or otherwise), the Company has director and officer liability insurance
in effect, the Company shall give prompt notice 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 Claim in accordance with the terms of such policies. In the event
of a Potential Change in Control (as defined in Section 9 herein), the Company
shall maintain in force any and all insurance policies then maintained by the
Company providing directors' and officers' liability insurance, in respect of
Indemnitee, for a period of six years thereafter. The Company
5
shall indemnify Indemnitee for Expenses incurred by Indemnitee in connection
with any successful action brought by Indemnitee for recovery under any
insurance policy referred to in this Section 8 and shall advance to Indemnitee
the Expenses of such action in the manner provided in Section 3 above.
Section 9. Certain Definitions.
(a) Change in Control: shall be deemed to have occurred if:
(i) before the Company has a class of securities registered
under Section 12 of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"):
(A) the Company, or any material subsidiary of the
Company, is merged, consolidated or reorganized into or with
another corporation or other legal person (an "Acquiring
Person") or securities of the Company are exchanged for
securities of an Acquiring Person, and as a result of such
merger, consolidation, reorganization or exchange less than a
majority of the combined voting power of the then outstanding
securities of the Acquiring Person immediately after such
transaction are held, directly or indirectly, in the aggregate
by the holders of Voting Securities immediately prior to such
transaction;
(B) the Company, or any material subsidiary of the
Company, in any transaction or series of related transactions,
sells or otherwise transfers all or substantially all of its
assets to an Acquiring Person, and less than a majority of the
combined voting power of the then outstanding securities of
the Acquiring Person immediately after such sale or transfer
are held, directly or indirectly, in the aggregate by the
holders of Voting Securities immediately prior to such sale or
transfer;
(C) during any period of two consecutive years,
individuals who at the beginning of any such period constitute
the directors of the Company cease for any reason to
constitute at least a majority thereof, unless the election,
or the nomination for election by the Company's stockholders,
of each director of the Company first elected during such
period was approved by a unanimous vote of the directors of
the Company then still in office who were directors of the
Company at the beginning of any such period;
(D) the Company and its subsidiaries, in any
transaction or series of related transactions, sells or
otherwise transfers business operations that generated two
thirds or more of the
6
consolidated revenues (determined on the basis of the
Company's four most recently completed fiscal quarters) of the
Company and its subsidiaries immediately prior thereto; or
(E) any other transaction or series of related
transactions occur that have substantially the effect of the
transactions specified in any of the preceding clauses in this
paragraph (i); or
(ii) after the Company has a class of securities registered
under Section 12 of the Exchange Act:
(A) any person, as that term is used in Section 13(d)
and Section 14(d)(2) of the Exchange Act, becomes, is
discovered to be, or files a report on Schedule 13D or 14D-1
(or any successor schedule, form or report) disclosing that
such person is a beneficial owner (as defined in Rule 13d-3
under the Exchange Act or any successor rule or regulation),
directly or indirectly, of securities of the Company
representing 20% or more of the total voting power of the
Company's then outstanding Voting Securities (unless such
person becomes such a beneficial owner in connection with the
initial public offering of the Company);
(B) individuals who, as of the consummation date of
the Company's initial public offering, constitute the Board of
Directors of the Company cease for any reason to constitute at
least a majority of the Board of Directors of the Company,
unless any such change is approved by a unanimous vote of the
members of the Board of Directors of the Company in office
immediately prior to such cessation;
(C) the Company, or any material subsidiary of the
Company, is merged, consolidated or reorganized into or with
an Acquiring Person or securities of the Company are exchanged
for securities of an Acquiring Person, and immediately after
such merger, consolidation, reorganization or exchange less
than a majority of the combined voting power of the then
outstanding securities of the Acquiring Person immediately
after such transaction are held, directly or indirectly, in
the aggregate by the holders of Voting Securities immediately
prior to such transaction;
(D) the Company, or any material subsidiary of the
Company, in any transaction or series of related transactions,
sells or otherwise transfers all or substantially all of its
assets to an Acquiring Person, and less than a majority of the
combined voting power of the then outstanding securities of
the Acquiring Person
7
immediately after such sale or transfer is held, directly or
indirectly, in the aggregate by the holders of Voting
Securities immediately prior to such sale or transfer;
(E) the Company and its subsidiaries, in any
transaction or series of related transactions, sells or
otherwise transfers business operations that generated two
thirds or more of the consolidated revenues (determined on the
basis of the Company's four most recently completed fiscal
quarters) of the Company and its subsidiaries immediately
prior thereto;
(F) the Company files a report or proxy statement with
the Securities and Exchange Commission pursuant to the
Exchange Act disclosing that a change in control of the
Company has or may have occurred or will or may occur in the
future pursuant to any then existing contract or transaction;
or
(G) any other transaction or series of related
transactions occur that have substantially the effect of the
transactions specified in any of the preceding clauses in this
paragraph (ii).
Notwithstanding the provisions of Section 9(a)(ii)(A) or
9(a)(ii)(D), unless otherwise determined in a specific case by majority vote of
the Board of Directors of the Company, a Change of Control shall not be deemed
to have occurred for purposes of this Agreement solely because (i) the Company,
(ii) an entity in which the Company directly or indirectly beneficially owns 50%
or more of the voting securities or (iii) any Company sponsored employee stock
ownership plan, or any other employee benefit plan of the Company, either files
or becomes obligated to file a report or a proxy statement under or in response
to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) under the Exchange Act, disclosing
beneficial ownership by it of shares of stock of the Company, or because the
Company reports that a Change in Control of the Company has or may have occurred
or will or may occur in the future by reason of such beneficial ownership.
(b) Claim: any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution mechanism, or any inquiry, hearing
or investigation whether conducted by the Company or any other party, whether
civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, fees,
expenses and obligations of any nature whatsoever paid or incurred in connection
with investigating, defending, being a witness in or participating in (including
appeal), or preparing to defend, be a witness in or participate in any Claim
relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence (whether before
or after the date hereof) related to the fact that Indemnitee is or was a
director, officer, employee, consultant,
8
agent or fiduciary of or to the Company, or any subsidiary of the Company, or is
or was serving at the request of the Company as a director, officer, employee,
trustee, agent or fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of anything done
or not done by Indemnitee in any such capacity.
(e) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control; (ii) any person (including the
Company) publicly announces an intention to take or to consider taking actions
which, if consummated, would constitute a Change in Control; (iii) any person,
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, who is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 9.5% or more
of the combined voting power of the Company's then outstanding Voting
Securities, increases such person's beneficial ownership of such securities by
five percentage points or more over the initial percentage of such securities;
or (iv) the Board of Directors of the Company adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in Control has
occurred.
(f) Reviewing Party: (i) the Company's Board of Directors
(provided that a majority of directors are not parties to the particular Claim
for which Indemnitee is seeking indemnification) or (ii) any other person or
body appointed by the Company's Board of Directors, who is not a party to the
particular Claim for which Indemnitee is seeking indemnification, or (iii) if
there has been a Change in Control, the special independent counsel referred to
in Section 2 hereof.
(g) Voting Securities: any securities of the Company which vote
generally in the election of directors.
Section 10. Amendments, Termination and Waiver. No supplement,
modification, amendment or termination 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.
Section 11. Contribution. If the indemnification provided in
Sections 1 and 3 of this Agreement is unavailable, then, in respect of any Claim
in which the Company is jointly liable with Indemnitee (or would be if joined in
the Claim), the Company shall contribute to the amount of Expenses, judgments,
fines, penalties and amounts paid in settlement as appropriate to reflect: (i)
the relative benefits received by the Company, on the one hand, and Indemnitee,
on the other hand, from the transaction from which the Claim arose, and (ii) the
relative fault of the Company, on the one hand, and of Indemnitee, on the other,
in connection with the events which resulted in such Expenses, judgments, fines,
penalties and amounts paid in settlement, 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
9
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent the circumstances resulting in such Expenses and Liabilities.
The Company agrees that it would not be just and equitable if contribution
pursuant to this Section 11 were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
described in this Section 11.
Section 12. Subrogation. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all papers required
and shall do everything that may be necessary to secure such rights, including
the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
Section 13. No Duplication of Payments. The Company shall not be
liable under this Agreement to make any payment in connection with any Claim
made against Indemnitee to the extent Indemnitee has otherwise actually received
payment (under insurance policy, Certificate of Incorporation or otherwise) of
the amounts otherwise indemnifiable hereunder.
Section 14. Binding Effect, Etc. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors, assigns, including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company, spouse, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as a director or officer (or in one of the
capacities enumerated in Section 9(d) hereof) of the Company or of any other
enterprise at the Board of Director's request.
Section 15. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted by
law.
Section 16. Applicable Law and Consent to Jurisdiction. This
Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules. The Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the
Delaware Court and not in any other state or federal court in the United States
of America or any court in any other country, (ii) consent to submit to the
exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii) appoint,
irrevocably, to the extent such party is not a resident of the State of Delaware
Registered Agents and Incorporators, L.L.C., 000 Xxxxxx Xxxxxxxxx, Xxxxxx,
Xxxxxx of Xxx Xxxxxx, XX 00000 as its agent in the State of Delaware as such
party's agent for acceptance of legal process in connection with any such action
or proceeding against such party
10
with the same legal force and validity as if served upon such party personally
within the State of Delaware, (iv) waive any objection to the laying of venue of
any such action or proceeding in the Delaware Court, and (v) waive, and agree
not to plead or to make, any claim that any such action or proceeding brought in
the Delaware Court has been brought in an improper or inconvenient forum.
Section 17. Identical 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. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
Executed this ______ day of _____________, 200__.
Micrus Corporation
By: __________________________________
Name: ____________________________
Title: ___________________________
By: __________________________________
Indemnitee
11
