INDEMNIFICATION AGREEMENT
Exhibit 10.11
THIS INDEMNIFICATION AGREEMENT (this “Agreement”), made and executed effective as of the
day of , , by and between ev3 Inc., a Delaware corporation (the “Company”), and
, an individual resident of the State of (the “Indemnitee”).
WHEREAS, the Company is aware that, in order to induce highly competent persons to serve the
Company as directors or officers or in other capacities, the Company must provide such persons with
adequate protection through insurance and indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf of the Company;
WHEREAS, the Company recognizes that the increasing difficulty in obtaining directors’ and
officers’ liability insurance, the increases in the cost of such insurance and the general
reductions in the coverage of such insurance have increased the difficulty of attracting and
retaining such persons;
WHEREAS, the Board of Directors of the Company has determined that it is essential to the best
interests of the Company’s stockholders that the Company act to assure such persons that there will
be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify such persons to the fullest extent permitted by applicable law so that they
will continue to serve the Company free from undue concern that they will not be so indemnified;
and
WHEREAS, the Indemnitee is willing to serve, continue to serve, and take on additional service
for or on behalf of the Company or any of its direct or indirect subsidiaries on the condition that
he/she be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Indemnitee do hereby agree as follows:
1. Service by the Indemnitee. The Indemnitee agrees to serve and/or continue to serve
as a director, officer, employee or other agent of the Company faithfully and will discharge
his/her duties and responsibilities to the best of his/her ability so long as the Indemnitee is
duly elected or qualified in accordance with the provisions of the Amended and Restated Certificate
of Incorporation, as amended (the “Certificate”), and Amended and Restated By-laws, as amended (the
“By-laws”) of the Company and the General Corporation Law of the State of Delaware, as amended (the
“DGCL”), or until his/her earlier death, resignation or removal. The Indemnitee may at any time
and for any reason resign from such position (subject to any other
contractual obligation or other obligation imposed by operation by law), in which event the
Company shall have no obligation under this Agreement to continue the Indemnitee in any such
position. Nothing in this Agreement shall confer upon the Indemnitee the right to continue in the
employ of the Company or as a director of the Company or affect the right of the Company to
terminate the Indemnitee’s employment at any time in the sole discretion of the Company, with or
without cause, subject to any contract rights of the Indemnitee created or existing otherwise than
under this Agreement.
2. Indemnification. The Company shall indemnify the Indemnitee against all Expenses
(as defined below), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the Indemnitee as provided in this Agreement to the fullest extent permitted by the
Certificate, By-laws and DGCL or other applicable law in effect on the date of this Agreement and
to any greater extent that applicable law may in the future from time to time permit. Without
diminishing the scope of the indemnification provided by this Section 2, the rights of
indemnification of the Indemnitee provided hereunder shall include, but shall not be limited to,
those rights hereinafter set forth, except that no indemnification shall be paid to the Indemnitee:
(a) on account of any action, suit or proceeding in which judgment is rendered
against the Indemnitee for disgorgement of profits made from the purchase or sale by
the Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended (the “Act”), or similar
provisions of any federal, state or local statutory law;
(b) on account of conduct of the Indemnitee which is finally adjudged by a
court of competent jurisdiction to have been knowingly fraudulent or to constitute
willful misconduct;
(c) in any circumstance where such indemnification is expressly prohibited by
applicable law;
(d) with respect to liability for which payment is actually made to the
Indemnitee under a valid and collectible insurance policy of the Company or under a
valid and enforceable indemnity clause, By-law or agreement (other than this
Agreement) of the Company, except in respect of any liability in excess of payment
under such insurance, clause, By-law or agreement;
(e) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful (and, in this respect, both the
Company and the Indemnitee have been advised that it is the position of the
Securities and Exchange Commission that indemnification for liabilities arising
under the federal securities laws is against public policy and is, therefore,
unenforceable, and that claims for indemnification should be submitted to the
appropriate court for adjudication); or
(f) in connection with any action, suit or proceeding by the Indemnitee against
the Company or any of its direct or indirect subsidiaries or the
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directors, officers, employees or other Indemnitees of the Company or any of
its direct or indirect subsidiaries, (i) unless such indemnification is expressly
required to be made by law, (ii) unless the proceeding was authorized by the Board
of Directors of the Company, (iii) unless such indemnification is provided by the
Company, in its sole discretion, pursuant to the powers vested in the Company under
applicable law, or (iv) except as provided in Sections 11 and 13 hereof.
3. Actions or Proceedings Other Than an Action by or in the Right of the Company. The
Indemnitee shall be entitled to the indemnification rights provided in this Section 3 if the
Indemnitee was or is a party or witness or is threatened to be a party or witness to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative in nature, other than an action by or in the right of the Company,
by reason of the fact that the Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any of its direct or indirect subsidiaries, or is or was serving at
the request of the Company, or any of its direct or indirect subsidiaries, as a director, officer,
employee, agent or fiduciary of any other entity, including, but not limited to, another
corporation, partnership, limited liability company, employee benefit plan, joint venture, trust or
other enterprise, or by reason of any act or omission by him/her in such capacity. Pursuant to
this Section 3, the Indemnitee shall be indemnified against all Expenses, judgments, penalties
(including excise and similar taxes), fines and amounts paid in settlement which were actually and
reasonably incurred by the Indemnitee in connection with such action, suit or proceeding
(including, but not limited to, the investigation, defense or appeal thereof), if the Indemnitee
acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his/her conduct was unlawful.
4. Actions by or in the Right of the Company. The Indemnitee shall be entitled to the
indemnification rights provided in this Section 4 if the Indemnitee was or is a party or witness or
is threatened to be made a party or witness to any threatened, pending or completed action, suit or
proceeding brought by or in the right of the Company to procure a judgment in its favor by reason
of the fact that the Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Company, or any of its direct or indirect subsidiaries, or is or was serving at the request of the
Company, or any of its direct or indirect subsidiaries, as a director, officer, employee, agent or
fiduciary of another entity, including, but not limited to, another corporation, partnership,
limited liability company, employee benefit plan, joint venture, trust or other enterprise, or by
reason of any act or omission by him/her in any such capacity. Pursuant to this Section 4, the
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by him/her in
connection with the defense or settlement of such action, suit or proceeding (including, but not
limited to the investigation, defense or appeal thereof), if the Indemnitee acted in good faith and
in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company; provided however, that no such indemnification shall be made in respect of any claim,
issue, or matter as to which the Indemnitee shall have been adjudged to be liable to the Company,
unless and only to the extent that the Court of Chancery of the State of Delaware or the court in
which such action, suit or proceeding was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably
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entitled to be indemnified against such Expenses actually and reasonably incurred by him/her
which such court shall deem proper.
5. Good Faith Definition. For purposes of this Agreement, the Indemnitee shall be
deemed to have acted in good faith and in a manner the Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, or, with respect to any criminal action or
proceeding to have had no reasonable cause to believe the Indemnitee’s conduct was unlawful, if
such action was based on (i) the records or books of the account of the Company or other
enterprise, including financial statements; (ii) information supplied to the Indemnitee by the
officers of the Company or other enterprise in the course of their duties; (iii) the advice of
legal counsel for the Company or other enterprise; or (iv) information or records given in reports
made to the Company or other enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Company or other enterprise.
6. Indemnification for Expenses of Successful Party. Notwithstanding the other
provisions of this Agreement, to the extent that the Indemnitee has served on behalf of the
Company, or any of its direct or indirect subsidiaries, as a witness or other participant in any
class action or proceeding, or has been successful, on the merits or otherwise, in defense of any
action, suit or proceeding referred to in Section 3 and 4 hereof, or in defense of any claim, issue
or matter therein, including, but not limited to, the dismissal of any action without prejudice,
the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the
Indemnitee in connection therewith, regardless of whether or not the Indemnitee has met the
applicable standards of Section 3 or 4 and without any determination pursuant to Section 8.
7. Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection
with the investigation, defense, appeal or settlement of such suit, action, investigation or
proceeding described in Section 3 or 4 hereof, but is not entitled to indemnification for the total
amount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably
incurred by the Indemnitee to which the Indemnitee is entitled.
8. Procedure for Determination of Entitlement to Indemnification. (a) To obtain
indemnification under this Agreement, the Indemnitee shall submit to the Company a written request,
including documentation and information which is reasonably available to the Indemnitee and is
reasonably necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of a request for
indemnification, advise the Board of Directors in writing that the Indemnitee has requested
indemnification. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s
request for indemnification hereunder shall be borne by the Company. The Company hereby
indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by the Indemnitee
under the immediately preceding sentence irrespective of the outcome of the determination of the
Indemnitee’s entitlement to indemnification.
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(b) Upon written request by the Indemnitee for indemnification pursuant to Section 3 or 4
hereof, the entitlement of the Indemnitee to indemnification pursuant to the terms of this
Agreement shall be determined by the following person or persons, who shall be empowered to make
such determination: (i) if a Change in Control (as hereinafter defined) shall have occurred, by
Independent Counsel (as hereinafter defined) (unless the Indemnitee shall request in writing that
such determination be made by the Board of Directors (or a committee thereof) in the manner
provided for in clause (ii) of this Section 8(b)) in a written opinion to the Board of Directors, a
copy of which shall be delivered to the Indemnitee; or (ii) if a Change in Control shall not have
occurred, (A)(1) by the Board of Directors of the Company, by a majority vote of Disinterested
Directors (as hereinafter defined) even though less than a quorum, or (2) by a committee of
Disinterested Directors designated by majority vote of Disinterested Directors, even though less
than a quorum, or (B) if there are no such Disinterested Directors or, even if there are such
Disinterested Directors, if the Board of Directors, by the majority vote of Disinterested
Directors, so directs, by Independent Counsel in a written opinion to the Board of Directors, a
copy of which shall be delivered to the Indemnitee. Such Independent Counsel shall be selected by
the Board of Directors and approved by the Indemnitee. Upon failure of the Board of Directors to
so select, or upon failure of the Indemnitee to so approve, such Independent Counsel shall be
selected by the Chancellor of the State of Delaware or such other person as the Chancellor shall
designate to make such selection. Such determination of entitlement to indemnification shall be
made not later than 45 days after receipt by the Company of a written request for indemnification.
If the person making such determination shall determine that the Indemnitee is entitled to
indemnification as to part (but not all) of the application for indemnification, such person shall
reasonably prorate such part of indemnification among such claims, issues or matters. If it is so
determined that the Indemnitee is entitled to indemnification, payment to the Indemnitee shall be
made within ten days after such determination.
9. Presumptions and Effect of Certain Proceedings. (a) In making a determination
with respect to entitlement to indemnification, the Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Company shall have the burden of proof in the making of any
determination contrary to such presumption.
(b) If the Board of Directors, or such other person or persons empowered pursuant to Section 8
to make the determination of whether the Indemnitee is entitled to indemnification, shall have
failed to make a determination as to entitlement to indemnification within 45 days after receipt by
the Company of such request, the requisite determination of entitlement to indemnification shall be
deemed to have been made and the Indemnitee shall be absolutely entitled to such indemnification,
absent actual and material fraud in the request for indemnification or a prohibition of
indemnification under applicable law. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself: (a) create a presumption that
the Indemnitee did not act in good faith and in a manner which he/she reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any criminal action or
proceeding, that the Indemnitee has reasonable cause to believe that the Indemnitee’s conduct was
unlawful; or (b) otherwise adversely affect the rights of the Indemnitee to indemnification, except
as may be provided herein.
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10. Advancement of Expenses. All reasonable Expenses actually incurred by the
Indemnitee in connection with any threatened or pending action, suit or proceeding shall be paid by
the Company in advance of the final disposition of such action, suit or proceeding, if so requested
by the Indemnitee, within 20 days after the receipt by the Company of a statement or statements
from the Indemnitee requesting such advance or advances. The Indemnitee may submit such statements
from time to time. The Indemnitee’s entitlement to such Expenses shall include those incurred in
connection with any proceeding by the Indemnitee seeking an adjudication or award in arbitration
pursuant to this Agreement. Such statement or statements shall reasonably evidence the Expenses
incurred by the Indemnitee in connection therewith and shall include or be accompanied by a written
affirmation by the Indemnitee of the Indemnitee’s good faith belief that the Indemnitee has met the
standard of conduct necessary for indemnification under this Agreement and an undertaking by or on
behalf of the Indemnitee to repay such amount if it is ultimately determined that the Indemnitee is
not entitled to be indemnified against such Expenses by the Company pursuant to this Agreement or
otherwise. Each written undertaking to pay amounts advanced must be an unlimited general
obligation but need not be secured, and shall be accepted without reference to financial ability to
make repayment.
11. Remedies of the Indemnitee in Cases of Determination not to Indemnify or to Advance
Expenses. In the event that a determination is made that the Indemnitee is not entitled to
indemnification hereunder or if the payment has not been timely made following a determination of
entitlement to indemnification pursuant to Sections 8 and 9, or if Expenses are not advanced
pursuant to Section 10, the Indemnitee shall be entitled to a final adjudication in an appropriate
court of the State of Delaware or any other court of competent jurisdiction of the Indemnitee’s
entitlement to such indemnification or advance. Alternatively, the Indemnitee may, at the
Indemnitee’s option, seek an award in arbitration to be conducted by a single arbitrator pursuant
to the rules of the American Arbitration Association, such award to be made within 60 days
following the filing of the demand for arbitration. The Company shall not oppose the Indemnitee’s
right to seek any such adjudication or award in arbitration or any other claim. Such judicial
proceeding or arbitration shall be made de novo, and the Indemnitee shall not be prejudiced by
reason of a determination (if so made) that the Indemnitee is not entitled to indemnification. If
a determination is made or deemed to have been made pursuant to the terms of Section 8 or Section 9
hereof that the Indemnitee is entitled to indemnification, the Company shall be bound by such
determination and shall be precluded from asserting that such determination has not been made or
that the procedure by which such determination was made is not valid, binding and enforceable. The
Company further agrees to stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this Agreement and is precluded from making any
assertions to the contrary. If the court or arbitrator shall determine that the Indemnitee is
entitled to any indemnification hereunder, the Company shall pay all reasonable Expenses actually
incurred by the Indemnitee in connection with such adjudication or award in arbitration (including,
but not limited to, any appellate proceedings).
12. Notification and Defense of Claim. Promptly after receipt by the Indemnitee of
notice of the commencement of any action, suit or proceeding, the Indemnitee will, if a claim in
respect thereof is to be made against the Company under this Agreement, notify the Company in
writing of the commencement thereof; but the omission to so notify the Company will not relieve the
Company from any liability that it may have to the Indemnitee otherwise than under this
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Agreement or otherwise, except to the extent that the Company may suffer material prejudice by
reason of such failure. Notwithstanding any other provision of this Agreement, with respect to any
such action, suit or proceeding as to which the Indemnitee gives notice to the Company of the
commencement thereof:
(a) The Company will be entitled to participate therein at its own expense.
(b) Except as otherwise provided in this Section 12(b), to the extent that it
may wish, the Company, jointly with any other indemnifying party similarly notified,
shall be entitled to assume the defense thereof with counsel reasonably satisfactory
to the Indemnitee. After notice from the Company to the Indemnitee of its election
to so assume the defense thereof, the Company shall not be liable to the Indemnitee
under this Agreement for any legal or other Expenses subsequently incurred by the
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. The Indemnitee shall have the right
to employ the Indemnitee’s own counsel in such action or lawsuit, 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 the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the Company, (ii) the
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
and such determination by the Indemnitee shall be supported by an opinion of
counsel, which opinion shall be reasonably acceptable to the Company, or (iii) the
Company shall not in fact have employed counsel to assume the defense of the 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 action,
suit or proceeding brought by or on behalf of the Company or as to which the
Indemnitee shall have reached the conclusion provided for in clause (ii) above.
(c) The Company shall not be liable to indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of any action, suit or proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. The Company shall not be required to obtain the consent of the Indemnitee
to settle any action, suit or proceeding which the Company has undertaken to defend
if the Company assumes full and sole responsibility for such settlement and such
settlement grants the Indemnitee a complete and unqualified release in respect of
any potential liability.
(d) If, at the time of the receipt of a notice of a claim pursuant to this
Section 12, the Company has director and officer liability insurance in effect, the
Company shall give prompt notice of the commencement 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 proceeding in accordance with the terms of the policies.
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13. Other Right to Indemnification. The indemnification and advancement of Expenses
provided by this Agreement are cumulative, and not exclusive, and are in addition to any other
rights to which the Indemnitee may now or in the future be entitled under any provision of the
By-laws or Certificate of the Company, any vote of stockholders or Disinterested Directors, any
provision of law or otherwise. Except as required by applicable law, the Company shall not adopt
any amendment to its By-laws or Certificate the effect of which would be to deny, diminish or
encumber the Indemnitee’s right to indemnification under this Agreement.
14. Director and Officer Liability Insurance. The Company shall maintain directors’
and officers’ liability insurance for so long as the Indemnitee’s services are covered hereunder,
provided and to the extent that such insurance is available on a commercially reasonable basis. In
the event the Company maintains directors’ and officers’ liability insurance, the Indemnitee shall
be named as an insured in such manner as to provide the Indemnitee the same rights and benefits as
are accorded to the most favorably insured of the Company’s officers or directors. However, the
Company agrees that the provisions hereof shall remain in effect regardless of whether liability or
other insurance coverage is at any time obtained or retained by the Company, except that any
payments made to, or on behalf of, the Indemnitee under an insurance policy shall reduce the
obligations of the Company hereunder.
15. Spousal Indemnification. The Company will indemnify the Indemnitee’s spouse to
whom the Indemnitee is legally married at any time the Indemnitee is covered under the
indemnification provided in this Agreement (even if the Indemnitee did not remain married to him or
her during the entire period of coverage) against any pending or threatened action, suit,
proceeding or investigation for the same period, to the same extent and subject to the same
standards, limitations, obligations and conditions under which the Indemnitee is provided
indemnification herein, if the Indemnitee’s spouse (or former spouse) becomes involved in a pending
or threatened action, suit, proceeding or investigation solely by reason of his or her status as
the Indemnitee’s spouse, including, without limitation, any pending or threatened action, suit,
proceeding or investigation that seeks damages recoverable from marital community property,
jointly-owned property or property purported to have been transferred from the Indemnitee to
his/her spouse (or former spouse). The Indemnitee’s spouse or former spouse also may be entitled
to advancement of Expenses to the same extent that the Indemnitee is entitled to advancement of
Expenses herein. The Company may maintain insurance to cover its obligation hereunder with respect
to the Indemnitee’s spouse (or former spouse) or set aside assets in a trust or escrow fund for
that purpose.
16. Intent. This Agreement is intended to be broader than any statutory
indemnification rights applicable in the State of Delaware and shall be in addition to any other
rights the Indemnitee may have under the Company’s Certificate, By-laws, applicable law or
otherwise. To the extent that a change in applicable law (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded currently under the Company’s
Certificate, By-laws, applicable law or this Agreement, it is the intent of the parties that the
Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. In the event
of any change in applicable law, statute or rule which narrows the right of a Delaware corporation
to indemnify a member of its Board of Directors or an officer, employee, agent or fiduciary, such
change, to the extent not otherwise required by such law, statute or rule to be
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applied to this Agreement, shall have no effect on this Agreement or the parties’ rights and
obligations hereunder.
17. Attorney’s Fees and Other Expenses to Enforce Agreement. In the event that the
Indemnitee is subject to or intervenes in any action, suit or proceeding in which the validity or
enforceability of this Agreement is at issue or seeks an adjudication or award in arbitration to
enforce the Indemnitee’s rights under, or to recover damages for breach of, this Agreement the
Indemnitee, if he/she prevails in whole or in part in such action, shall be entitled to recover
from the Company and shall be indemnified by the Company against any actual expenses for attorneys’
fees and disbursements reasonably incurred by the Indemnitee.
18. Effective Date. The provisions of this Agreement shall cover claims, actions,
suits or proceedings whether now pending or hereafter commenced and shall be retroactive to cover
acts or omissions or alleged acts or omissions which heretofore have taken place. The Company
shall be liable under this Agreement, pursuant to Sections 3 and 4 hereof, for all acts of the
Indemnitee while serving as a director and/or officer, notwithstanding the termination of the
Indemnitee’s service, if such act was performed or omitted to be performed during the term of the
Indemnitee’s service to the Company.
19. Duration of Agreement. This Agreement shall survive and continue even though the
Indemnitee may have terminated his/her service as a director, officer, employee, agent or fiduciary
of the Company or as a director, officer, employee, agent or fiduciary of any other entity,
including, but not limited to another corporation, partnership, limited liability company, employee
benefit plan, joint venture, trust or other enterprise or by reason of any act or omission by the
Indemnitee in any such capacity. This Agreement shall be binding upon the Company and its
successors and assigns, including, without limitation, any corporation or other entity which may
have acquired all or substantially all of the Company’s assets or business or into which the
Company may be consolidated or merged, and shall inure to the benefit of the Indemnitee and his/her
spouse, successors, assigns, heirs, devisees, executors, administrators or other legal
representations. The Company shall require any successor or assignee (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, by written agreement in form and substance reasonably satisfactory to the
Company and the Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if no such succession
or assignment had taken place.
20. Disclosure of Payments. Except as expressly required by any Federal or state
securities laws or other Federal or state law, neither party shall disclose any payments under this
Agreement unless prior approval of the other party is obtained.
21. Severability. If any provision or provisions of this Agreement shall be held
invalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, but not limited to, all
portions of any Sections of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the
fullest extent possible, the provisions of this Agreement (including, but not limited to, all
portions of any paragraph of this Agreement containing any such provision held to be invalid,
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illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifest by the provision held invalid, illegal or
unenforceable.
22. Counterparts. This Agreement may be executed by 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 shall be required to be produced to evidence the existence of this
Agreement.
23. Captions. The captions and headings used in this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
24. Definitions. For purposes of this Agreement:
(a) “Change in Control” shall mean a change in control of the Company occurring
after the date hereof of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item
on any similar schedule or form) promulgated under the Act, whether or not the
Company is then subject to such reporting requirement; provided,
however, that, without limitation, a Change in Control shall include: (i)
the acquisition (other than from the Company) after the date hereof by any person,
entity or “group” within the meaning of Section 13(d)(3) or 14(d)(2) of the Act
(excluding, for this purpose, the Company or its subsidiaries, any employee benefit
plan of the Company or its subsidiaries which acquires beneficial ownership of
voting securities of the Company, any qualified institutional investor who meets the
requirements of Rule 13d-1(b)(1) promulgated under the Act, Warburg Pincus LLC and
its affiliates, and The Vertical Group, L.P. and its affiliates) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Act) of 20% or
more of either the then-outstanding shares of common stock or the combined voting
power of the Company’s then-outstanding capital stock entitled to vote generally in
the election of directors; (ii) individuals who, as of the date hereof, constitute
the Board of Directors (the “Incumbent Board”) ceasing for any reason to constitute
at least a majority of the Board of Directors, provided that any person becoming a
director subsequent to the date hereof whose election, or nomination for election by
the Company’s stockholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or nomination
of an individual whose initial assumption of office is in connection with an actual
or threatened election contest relating to the election of the directors of the
Company) shall be, for purposes of this Agreement, considered as though such person
were a member of the Incumbent Board; or (iii) approval by the stockholders of the
Company of (A) a reorganization, merger, or consolidation, in each case, with
respect to which persons who were the stockholders of the Company immediately prior
to such reorganization, merger, or consolidation do not, immediately thereafter, own
more than 50% of the
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combined voting power entitled to vote generally in the election of directors
of the reorganized, merged, consolidated or other surviving corporation’s
then-outstanding voting securities, (B) a liquidation or dissolution of the Company,
or (C) the sale of all or substantially all of the assets of the Company.
(b) “Disinterested Director” shall mean a director of the Company who is not or
was not a party to the action, suit, investigation or proceeding in respect of which
indemnification is being sought by the Indemnitee.
(c) “Expenses” shall include all attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees, and
all other disbursements or expenses incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating or being or preparing to
be a witness in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature.
(d) “Independent Counsel” shall mean a law firm or a member of a law firm that
neither is presently nor in the past five years has been retained to represent (i)
the Company or the Indemnitee in any matter material to either such party or (ii)
any other party to the action, suit, investigation or proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of interest
in representing either the Company or the Indemnitee in an action to determine the
Indemnitee’s right to indemnification under this Agreement.
25. Entire Agreement, Modification and Waiver. This Agreement constitutes the entire
agreement and understanding of the parties hereto regarding the subject matter hereof, and no
supplement, modification or amendment of this Agreement shall be binding unless executed in writing
by both 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. No supplement, modification or amendment of this Agreement
shall limit or restrict any right of the Indemnitee under this Agreement in respect of any act or
omission of the Indemnitee prior to the effective date of such supplement, modification or
amendment unless expressly provided therein.
26. Notices. All notices, requests, demands or other communications hereunder shall
be in writing and shall be deemed to have been duly given if (i) delivered by hand with receipt
acknowledged by the party to whom said notice or other communication shall have been directed, (ii)
mailed by certified or registered mail, return receipt requested with postage prepaid, on the date
shown on the return receipt or (iii) delivered by facsimile transmission on the date shown on the
facsimile machine report:
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| (a) | If to the Indemnitee to: | ||
| (b) | If to the Company, to: | ||
| ev3 Inc. 0000 00xx Xxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxx 00000 Attention: Chief Legal Officer Facsimile: (000) 000-0000 |
|||
| with a copy to: | |||
| Xxxxxxxxxxx, Xxxxx & Xxxxxxxx, LLP Attn: Xxx Xxxxxxx 00 Xxxxx Xxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
or to such other address as may be furnished to the Indemnitee by the Company or to the Company by
the Indemnitee, as the case may be.
27. Governing Law. The parties hereto agree that this Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of Delaware, applied without
giving effect to any conflicts-of-law principles.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.
| ev3 INC. |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE: |
||||
| By | ||||
| Name: | ||||
