EXHIBIT 10.15
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "AGREEMENT"), made as of the _____
day of March, 2003, between Refocus Group, Inc., a Delaware corporation (the
"COMPANY"), and each of Xxxxxx X. Xxxxxx ("Xxxxxx") and Xxxxxxxx Xxxx ("Beam").
Xxxxxx and Beam are each referred to as an "INDEMNITEE" and, collectively, as
the "INDEMNITEES"), (Xxxxxx and Beam are sometimes, collectively, referred to
herein as the "DIRECTORS").
RECITALS:
WHEREAS, Xxxxxx is willing to continue to serve as a director of the
Company on the condition that in his capacity as a director of the Company after
the Effective Time, he be indemnified to the fullest extent permitted by law;
WHEREAS, Beam is willing to continue to serve as a director of the
Company on the condition that in her capacity as a director of the Company after
the Effective Time, she be indemnified to the fullest extent permitted by law;
WHEREAS, concurrently with the execution of this Agreement, the
Directors are each agreeing to continue to serve as a director of the Company
after the Effective Time until his/her resignation as a director of the Company
is effective upon compliance by the Company with the provisions of Section 14(f)
of the Securities Act of 1934, as amended (the "Exchange Act"), and Rule 14f-1
promulgated thereunder.
NOW, THEREFORE, in consideration of the premises and the covenants
herein contained, the Company and the Indemnitees hereby agree as follows:
1. AGREEMENT TO SERVE. Each of the Directors agrees to continue to
serve as a director of the Company after the Effective Time hereof until his/her
resignation as a director of the Company is effective upon compliance by the
Company to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder.
2. DEFINITIONS. As used in this Agreement:
(a) "CODE" means the Internal Revenue Code of 1986, as amended.
(b) "EFFECTIVE TIME" shall have the same meaning as in the Agreement
of Merger and Plan of Reorganization, dated as of even date herewith, among
Refocus Group, Inc., Presby Corp., and Refocus Acquisition Corp.
(c) "EXPENSES" includes, without limitation, all costs, expenses and
obligations (including attorneys' fees and disbursements, court costs, travel
expenses and fees of experts) incurred or paid in connection with investigating,
defending, being a witness in or participating in, or preparing to defend, any
Proceeding, whether conducted by the Company or otherwise, including, without
limitation, any Proceeding, action or process for the purpose of establishing
Indemnitees'
right to indemnification under this Agreement and any amounts paid in settlement
by or on behalf of Indemnitee.
(d) "INDEPENDENT LEGAL COUNSEL" means legal counsel who or which has
not provided or performed services for the Company, any of its directors,
officers, or the Indemnitees for the last three years and is not otherwise
representing any party to any Proceeding, other than legal services rendered as
an independent legal counsel in any prior determination regarding
indemnification under this Agreement or any similar agreement with any other
director or officer.
(e) "OFFICIAL CAPACITY" means the elective or appointive office in
the Company held by the director and/or officer.
(f) "PERSON" shall mean any individual, corporation, partnership,
joint venture, limited liability company or other entity.
(g) "PROCEEDING" includes any threatened, pending or completed
action, suit or proceeding, whether of a civil, criminal, administrative,
arbitrative or investigative nature (including all appeals therefrom), or any
inquiry or investigation that could lead to such an action, suit or proceeding.
(h) 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
COMPANY" shall include any service as a director, officer, employee or agent of
the Company that 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 is determined to have acted in
good faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "HE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE
BEST INTERESTS OF THE COMPANY," as referred to in this Agreement.
3. INDEMNITY. The Company shall indemnify the Indemnitees to the
fullest extent permitted by law if any Indemnitee was, is or becomes a party to
or is threatened to be made a party to or otherwise involved (as a witness or
otherwise) in any Proceeding because any Director is or was, after the Effective
Time, a director, officer, employee, trustee, agent or fiduciary of the Company
or is or was serving, after the Effective Time, at the request of the Company as
a director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust or other enterprise, against all
Expenses, judgments, amounts paid in settlement, fines and penalties (including
excise and similar taxes) (each, a "CLAIM" and collectively, "CLAIMS") incurred
by the Indemnitees in connection with the defense or settlement of such
Proceeding, but only if it is determined pursuant to SECTION 4 that the
applicable Director acted in good faith and (a) in the case of conduct in his
Official Capacity, in a manner he reasonably believed to be in the best
interests of the Company; (b) in all other cases, in a manner he reasonably
believed to be in or not opposed to the best interests of the Company; and (c)
in the case of a criminal proceeding, had no reasonable cause to believe that
his conduct was unlawful. No indemnification will be made to any Indemnitee with
respect to any Proceeding relating to any actions and/or omissions occurring
prior to, and including, the Effective Time or in which the applicable Director
shall have been found liable for willful or
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intentional misconduct in the performance of his duty to the Company or for any
grossly negligent act or omission. The termination of any such Proceeding by
judgment, order of court, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, determine that Indemnitee
did not act in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any criminal
proceeding, that such person had reasonable cause to believe that his conduct
was unlawful. The Indemnitees shall be deemed to have been found liable in
respect of any claim, issue or matter only after they have been so adjudged by a
court of competent jurisdiction after exhaustion of all appeals therefrom. The
Indemnitee shall, as a condition precedent to be indemnified under this
Agreement, give to the Company notice in writing as soon as practicable of any
Claims made against such Indemnitee for which indemnity will or could be subject
under this Agreement.
4. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. Any indemnification under SECTION 3 shall be made or
paid by the Company no later than 30 calendar days after receipt by the Company
of the written request of any Indemnitee therefor, unless a determination is
made within such 30 calendar day period that the applicable Director has not met
the relevant standards or other conditions for indemnification set forth in
SECTION 3. Such determination shall be made (a) by a majority vote of a quorum
consisting of members of the Board of Directors who are not parties to the
Proceedings; (b) if such a quorum cannot be obtained, by a majority vote of a
committee of the Board of Directors of the Company, designated to act in the
matter by a majority vote of all directors, consisting solely of two or more
directors who at the time of the vote are not parties to the Proceedings; (c) by
Independent Legal Counsel selected by the Board of Directors of the Company or a
committee of the Board of Directors of the Company by vote as set forth in
SUBSECTION (a) and (b) of this SECTION 4, or, if such a quorum cannot be
obtained and such a committee cannot be established, by a majority vote of all
directors of the Company; or (d) by the stockholders in a vote that excludes the
shares held by directors who are parties to the Proceedings (in any such case,
the "REVIEWING PARTY"). In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitees are entitled to indemnification
under any provision of this Agreement, the burden of proof shall be on the
Company to establish that the Indemnitees are not so entitled. If there has been
no determination by the Reviewing Party or if the Reviewing Party determines
that Indemnitees substantively would not be permitted to be indemnified in whole
or in part under applicable law, the Indemnitees shall have the right to
commence litigation in any court in the State of Texas having subject matter
jurisdiction thereof and in which venue is proper 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.
5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. To the extent
an Indemnitee has been wholly successful on the merits or otherwise in defense
of any Proceeding or in defense of any claim, issue or matter therein, including
the dismissal of an action without prejudice, such Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
6. ADVANCES OF EXPENSES. The Expenses incurred by an Indemnitee in
connection with any Proceeding shall be paid by the Company in advance of a
final disposition of such Proceeding at the written request of the Indemnitee,
if (a) the indemnification is pursuant to SECTION 3 and the Company receives a
written affirmation by the Indemnitee of the Indemnitee's good faith belief that
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he or it has met the necessary standard of conduct and other conditions for
indemnification, and (b) such Indemnitee undertakes, in writing, to repay such
amount if and to the extent that it is ultimately determined that he is not
entitled to indemnification for such Expenses pursuant to SECTION 3. Following
such a request, statement and undertaking by such Indemnitee, the Company shall,
subject to the provisions of SECTION 4, pay all invoices, statements or bills
reflecting such Expenses submitted by or on behalf of Indemnitee and shall
reimburse Indemnitee for all Expenses paid by such Indemnitee within 30 calendar
days. Any dispute as to the reasonableness of any Expense shall not delay an
Expense advance by the Company, and the Company agrees that any such dispute
shall be resolved only upon the disposition or conclusion of the Proceeding. The
Company agrees to pay the fees of any Independent Legal Counsel required by this
Agreement and to indemnify such counsel against all expenses (including
attorneys' fees), claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.
7. COURT ORDERED INDEMNIFICATION; FEES AND EXPENSES. The right to
indemnification or advances as provided by this Agreement shall be enforceable
by the Indemnitees in any court of competent jurisdiction. Should any party
hereto be required to employ an attorney to enforce or defend the rights of such
party hereunder or in connection herewith, the prevailing party shall be
entitled to recover from the losing party such prevailing party's court costs
and reasonable attorneys' fees and expenses actually incurred in connection
therewith.
8. NO PRESUMPTION. For purposes of this Agreement, the termination
of any claim, 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 or
that a court has determined that indemnification is not permitted by applicable
law.
9. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification
provided by this Agreement shall not be deemed exclusive of and shall be in
addition to (but shall not be duplicative of) any other rights to which the
Indemnitees may be entitled under the Company's Certificate of Incorporation or
Bylaws, any agreement (including on any and all directors' and/or officers'
insurance policies), any vote of stockholders or disinterested directors, or
otherwise. The indemnification under this Agreement shall continue as to the
Indemnitees, even though the applicable Director may have ceased to be a
director and/or officer (provided that the Claim arises from actions and/or
omissions of the Director after the Effective Time) and shall inure to the
benefit of the Indemnitees' heirs, personal representatives, successors and
assigns, as applicable.
10. PARTIAL INDEMNIFICATION. If the Indemnitees are entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses or Claims actually and reasonably incurred by an
Indemnitee in the investigation, defense, appeal or settlement of any Proceeding
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify such Indemnitee for the portion of such Expenses, judgments, fines or
penalties to which such Indemnitee is entitled.
11. SAVINGS CLAUSE. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, the Company
shall nevertheless indemnify the Indemnitees as to Expenses, judgments, fines
and penalties with respect to any Proceeding to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated.
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12. NOTICE. Any notice, payment, demand or communication required or
permitted to be delivered or given by the provisions of this Agreement shall be
deemed to have been effectively delivered or given and received upon the date
personally delivered to (or faxed to) the respective party to which it is
directed, or five (5) business days after being deposited by registered or
certified mail, with postage and charges prepaid to the Indemnitors, at the
respective addresses set forth above their respective signatures to this
Agreement and to the Company at Refocus Group, Inc., 00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attn: President.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and upon the execution hereof by all parties hereto, in
counterparts or otherwise, each executed counterpart shall constitute an
original and all of such counterparts together shall constitute a single
original.
14. GOVERNING LAW. This Agreement and the rights and obligations of
the parties hereto shall be governed by and construed and enforced in accordance
with the substantive laws (but not the rules governing conflicts of laws) of the
State of Delaware.
15. JURISDICTION. The Company and the Indemnitees each hereby
irrevocably consent to the jurisdiction of any court of competent jurisdiction
and appropriate venue in the State of Texas or the State of Delaware for all
purposes in connection with any action or proceeding that arises out of or
relates to this Agreement.
16. CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
17. GENDER AND NUMBER. When the context requires, the gender of all
words used herein shall include the masculine, feminine and neuter, and the
number of words shall include the singular and plural.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
19. AMENDMENTS. 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 provisions hereof (whether or not
similar) nor shall that waiver constitute a continuing waiver.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
REFOCUS GROUP, INC.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx, Vice President
Xxxxxx X. Xxxxxx
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/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Xxxxxxxx Xxxx
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/s/ Xxxxxxxx Xxxx
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Xxxxxxxx Xxxx
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