INDEMNITY AGREEMENT
EXHIBIT 10.22
This Indemnity Agreement (the “Agreement”), dated as of , is made by and between
Abaxis, Inc., a California corporation (the “Company”), and (the “Indemnitee”).
Recitals
A. The Company is aware that competent and experienced persons are increasingly reluctant to
serve as directors, officers or agents of corporations unless they are protected by comprehensive
liability insurance or indemnification, due to increased exposure to litigation costs and risks
resulting from their service to such corporations, and due to the fact that the exposure frequently
bears no reasonable relationship to the compensation of such directors, officers and other agents.
B. The statutes and judicial decisions regarding the duties of directors and officers are
often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such directors,
officers and agents with adequate, reliable knowledge of legal risks to which they are exposed or
information regarding the proper course of action to take.
C. Plaintiffs often seek damages in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense and/or settlement of such
litigation is often beyond the personal resources of directors, officers and other agents.
D. The Company believes that it is unfair for its directors, officers and agents and the
directors, officers and agents of its subsidiaries to assume the risk of huge judgments and other
expenses which may occur in cases in which the director, officer or agent received no personal
profit and in cases where the director, officer or agent was not culpable.
E. The Company recognizes that the issues in controversy in litigation against a director,
officer or agent of a corporation such as the Company or its subsidiaries are often related to the
knowledge, motives and intent of such director, officer or agent, that he is usually the only
witness with knowledge of the essential facts and exculpating circumstances regarding such matters,
and that the long period of time which usually elapses before the trial or other disposition of
such litigation often extends beyond the time that the director, officer or agent can reasonably
recall such matters; and may extend beyond the normal time for retirement for such director,
officer or agent with the result that he, after retirement, or, in the event of his death, his
spouse, heirs, executors or administrators may be faced with limited ability and undue hardship in
maintaining an adequate defense, which may discourage such a director, officer or agent from
serving in that position.
1.
F. Based upon their experience as business managers, the Board of Directors of the Company
(the “Board”) has concluded that, to retain and attract talented and experienced individuals to
serve as directors, officers and agents of the Company and its subsidiaries and to encourage such
individuals to take the business risks necessary for the success of the Company and its
subsidiaries, it is necessary for the Company to contractually indemnify its directors, officers
and agents and the directors, officers and agents of its subsidiaries, and to assume for itself
maximum liability for expenses and damages in connection with claims against such directors,
officers and agents in connection with their service to the Company and its subsidiaries, and has
further concluded that the failure to provide such contractual indemnification could result in
great harm to the Company and its subsidiaries and the Company’s shareholders.
G. Sections 204 and 317 of The California General Corporation Law, as amended (the “Code”),
under which the Company is organized, empower the Company to adopt provisions in its Articles of
Incorporation to indemnify its directors, officers and other agents by Bylaw provision, agreement
or otherwise and to indemnify persons who serve, at the request of the Company, as the directors,
officers or agents of other corporations or enterprises. Sections 204 and 317(g) of the Code
provide that the indemnification permitted by Section 317 of the Code is not exclusive.
H. The Company, after reasonable investigation prior to the date hereof, has determined that
the liability insurance coverage available to the Company and its subsidiaries as of the date
hereof is inadequate and/or unreasonably expensive. The Company believes, therefore, that the
interests of the Company’s shareholders would best be served by a combination of such insurance as
the Company may obtain, or request a subsidiary to obtain, pursuant to the Company’s obligations
hereunder and the indemnification by the Company of the directors, officers and agents of the
Company and its subsidiaries.
I. The Company desires and has requested the Indemnitee to serve or continue to serve as a
director, officer or agent of the Company and/or one or more subsidiaries of the Company free from
undue concern for claims for damages arising out of or related to such services to the Company
and/or one or more subsidiaries of the Company.
J. The Indemnitee is willing to serve, or to continue to serve, the Company and/or one or more
subsidiaries of the Company, provided that he is furnished the indemnity provided for herein.
2.
Agreement
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
(a) Agent. For the purposes of this Agreement, “agent” of the Company means any person
who is or was a director, officer, employee or other agent of the Company or a subsidiary of the
Company; or is or was serving at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company as a director, officer, employee or agent
of another foreign or domestic corporation, partnership, joint venture, trust or other domestic
corporation which was a predecessor corporation of the Company or a subsidiary of the Company, or
was a director, officer, employee or agent of another enterprise at the request of, for the
convenience of, or to represent the interests of such predecessor corporation.
(b) Expenses. For purposes of this Agreement, “expenses” includes all direct and
indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees
and related disbursements, other out-of-pocket costs and reasonable compensation for time spent by
the Indemnitee for which he is not otherwise compensated by the Company or any third party)
actually and reasonably incurred by the Indemnitee in connection with either the investigation,
defense or appeal of a proceeding or establishing or enforcing a right to indemnification under
this Agreement or Section 317 of the Code, or settling or otherwise disposing of a pending action
provided court approval is obtained.
(c) Liabilities. For purposes of this Agreement, “liabilities” include all judgments,
fines, ERISA excise taxes and penalties and amounts paid in settlement.
(d) Proceeding. For purposes of this Agreement, “proceeding” means any threatened,
pending, or completed action, suit or other proceeding, whether civil, criminal, administrative, or
investigative.
(e) Subsidiary. For purposes of this Agreement, “subsidiary” means any corporation of
which more than 50% of the outstanding voting securities is owned directly or indirectly by the
Company, by the Company and one or more other subsidiaries, or by one or more other subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve as an
agent of the Company, at its will (or under separate agreement, if such agreement exists), in the
capacity Indemnitee currently serves as an agent of the Company, so long as he is duly appointed or
elected and qualified in accordance with the applicable provisions of the Bylaws of the Company or
any subsidiary of the Company or until such time as he tenders his resignation in writing;
provided, however, that nothing contained in this Agreement is intended to create any right to
continued employment by Indemnitee.
3.
3. Liability Insurance.
(a) Maintenance of D&O Insurance. The Company hereby covenants and agrees that, so
long as the Indemnitee shall continue to serve as an agent of the Company and thereafter so long as
the Indemnitee shall be subject to any possible proceeding by reason of the fact that the
Indemnitee was an agent of the Company, the Company, subject to Section 3(c), shall promptly obtain
and maintain in full force and effect directors’ and officers’ liability insurance (“D&O
Insurance”) in reasonable amounts from established and reputable insurers.
(b) Rights and Benefits. In all policies of D&O Insurance, the Indemnitee shall be
named as an insured in such a manner as to provide the Indemnitee the same rights and benefits as
are accorded to the most favorably insured of the Company’s directors, if the Indemnitee is a
director; or of the Company’s officers, if the Indemnitee is not a director of the Company but is
an officer; or of the Company’s key employees, if the Indemnitee is not a director or officer but
is a key employee.
(c) Limitation on Required Maintenance of D&O Insurance. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company
determines in good faith that such insurance is not reasonably available, the premium costs for
such insurance are disproportionate to the amount of coverage provided, the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient benefit, or the Indemnitee
is covered by similar insurance maintained by a subsidiary of the Company.
4. Mandatory Indemnification. Subject to Sections 4(d) and 9 below, the Company shall
indemnify the Indemnitee as follows:
(a) Third Party Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any proceeding (other than an action by or in the right of the
Company) by reason of the fact that he is or was an agent of the Company, or by reason of anything
done or not done by him in such capacity, the Company shall indemnify the Indemnitee against any
and all expenses and liabilities of any type whatsoever actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal of such proceeding, provided the
Indemnitor acted in good faith and in a manner he 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 conduct was unlawful.
(b) Derivative Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any proceeding by or in the right of the Company to procure a
judgment in its favor by reason of the fact that he is or was an agent of the Company, or by reason
of anything done or not done by him in such capacity, the Company shall indemnify the Indemnitee
against any and all expenses actually and reasonably incurred by him in connection with the
investigation, defense, settlement, or appeal of such proceeding, provided the Indemnitor acted in
good faith and in a manner he reasonably believed to be in or not opposed to the best interests of
the Company and its shareholders. Notwithstanding the foregoing, no indemnification under this
subsection 4(b) shall be made (i) in respect to any claim, issue or matter as to which such person
shall have been finally adjudged to be liable to the Company in the performance of such person’s
duty to the Company and its shareholders, unless, and only to
4.
the extent that the court in which such proceeding was brought shall determine upon
application that, in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such amounts and then only to the extent that the court shall
determine, (ii) of amounts paid in settling or otherwise disposing of a pending action without
court approval, or (iii) of expenses incurred in defending a pending action that is settled or
otherwise disposed of without court approval.
(c) Actions where Indemnitee is Deceased. If the Indemnitee is a person who was or is
a party or is threatened to be made a party to any proceeding by reason of the fact that he is or
was an agent of the Company, or by reason of anything done or not done by him in such capacity, and
if prior to, during the pendency or after completion of such proceeding Indemnitee becomes
deceased, the Company shall indemnify the Indemnitee’s heirs, executors and administrators against
any and all expenses and liabilities of any type whatsoever actually and reasonably incurred to the
extent Indemnitee would have been entitled to indemnification pursuant to Sections 4(a) or 4(b)
above were Indemnitee still alive.
(d) Limitations on Indemnitee. Notwithstanding the foregoing, the Company shall not be
obligated to indemnify the Indemnitee pursuant to this Agreement:
(i) on account of any claim against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law;
(ii) for any amount for which payment is actually made to Indemnitee under a valid and
collectible insurance policy of D&O Insurance, or under a valid and enforceable indemnity clause,
Bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause,
Bylaw or agreement;
(iii) if indemnification is not lawful (and, in this respect, both the Company and Indemnitee
have been advised that the Securities and Exchange Commission believes 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 appropriate courts for
adjudication);
(iv) on account of any acts or omissions from which a director may not be relieved of
liability as set forth in Section 204 of the Code (whether or not Indemnitee is a director of the
Company) or as to circumstances in which indemnification is prohibited by Section 317 of the Code.
5. Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any expenses or liabilities of
any type whatsoever incurred by him in the investigation, defense, settlement or appeal of a
proceeding, but not entitled, however, to indemnification for all of the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for such total amount except as to the portion
thereof to which the Indemnitee is not entitled.
5.
6. Mandatory Advancement of Expenses. Subject to Section 9(a) below, the Company shall
advance all expenses incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of any proceeding to which the Indemnitee is a party or is threatened to be
made a party by reason of the fact that the Indemnitee is or was an agent of the Company.
Indemnitee hereby undertakes to repay such amounts advanced if, and to the extent that, it shall
ultimately be determined that the Indemnitee is not entitled to such amounts. The advance to be
made hereunder shall be paid by the Company to the Indemnitee within twenty (20) days following
delivery of a written request therefor by the Indemnitee to the Company.
7. Notice and Other Indemnification Procedures.
(a) Promptly after receipt by the Indemnitee of notice of the commencement of or the threat of
commencement of any proceeding, the Indemnitee shall, if the Indemnitee believes that
indemnification with respect thereto may be sought from the Company under this Agreement, notify
the Company of the commencement or threat of commencement thereof.
(b) If at the time of the receipt of a notice pursuant to Section 7(a) hereof of the
commencement of a proceeding the Company has D&O Insurance in effect, the Company shall give prompt
notice of the commencement of such proceeding to the insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) In the event the Company shall be obligated to pay the expenses of any proceeding against
the Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such
proceeding, with counsel approved by the Indemnitee, upon the delivery to the Indemnitee of written
notice of its election so to do. After delivery of such notice, approval of such counsel by the
Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred by the Indemnitee
with respect to the same proceeding, provided that (i) the Indemnitee shall have the right to
employ his counsel in any such proceeding at the Indemnitee’s expense; and (ii) if (A) the
employment of counsel by the Indemnitee has been previously authorized by the Company, (B) the
Indemnitee shall have reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of any such defense or (C) the Company shall not, in
fact, have employed counsel to assume the defense of such proceeding, the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Company.
8. Shareholder Ratification. Unless the form of this Agreement has been approved by
the shareholders of the Company, this Agreement shall be expressly subject to ratification by such
shareholders. If the form of this Agreement is not so ratified and/or approved by such shareholders
before the effective date of this Agreement, or within two (2) years after the effective date
hereof, this Agreement shall be void.
9. Exceptions. Any other provision herein to the contrary notwithstanding, the Company
shall not be obligated pursuant to the terms of this Agreement:
6.
(a) Claims Initiated by Indemnities. To indemnify or advance expenses to the
Indemnitee with respect to proceedings or claims initiated or brought voluntarily by the Indemnitee
and not by way of defense, unless (i) such indemnification is expressly required to be made by law,
(ii) the proceeding was authorized by the Board, (iii) such indemnification is provided by the
Company, in its sole discretion, pursuant to the powers vested in the Company under the Code or
(iv) the proceeding is brought to establish or enforce a right to indemnification under this
Agreement or any other statute or law.
(b) Lack of Good Faith. To indemnify the Indemnitee for any expenses incurred by the
Indemnitee with respect to any proceeding instituted by the Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Unauthorized Settlements. To indemnify the Indemnitee under this Agreement for any
amounts paid in settlement of a proceeding unless the Company consents to such settlement, which
consent shall not be unreasonably withheld.
10. Non-exclusivity. The provisions for indemnification and advancement of expenses
set forth in this Agreement shall not be deemed exclusive of any other rights which the Indemnitee
may have under any provision of law, the Company’s Articles of Incorporation or Bylaws, the vote of
the Company’s shareholders or disinterested directors, other agreements, or otherwise, both as to
action in his official capacity and to action in another capacity while occupying his position as
an agent of the Company, and the Indemnitee’s rights hereunder shall continue after the Indemnitee
has ceased acting as an agent of the Company and shall inure to the benefit of the heirs, executors
and administrators of the Indemnitee.
11. Enforcement. Any right to indemnification or advances granted by this Agreement to
Indemnitee shall be enforceable by or on behalf of Indemnitee in any court of competent
jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or
(ii) no disposition of such claim is made within ninety (90) days of request therefor. Indemnitee,
in such enforcement action, if successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting his claim. It shall be a defense for any action for which a claim for
indemnification is made under this Agreement (other than an action brought to enforce a claim for
expenses pursuant to Section 6 hereof, provided that the required undertaking has been tendered to
the Company) that Indemnitee is not entitled to indemnification because of the limitations set
forth in Sections 4 and 9 hereof. Neither the failure of the Company (including its Board of
Directors or its shareholders) to have made a determination prior to the commencement of such
enforcement action that indemnification of Indemnitee is proper in the circumstances, nor an actual
determination by the Company (including its Board of Directors or its shareholders) that such
indemnification is improper, shall be a defense to the action or create a presumption that
Indemnitee is not entitled to indemnification under this Agreement or otherwise.
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
7.
execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such rights.
13. Survival of Rights.
(a) All agreements and obligations of the Company contained herein shall continue during the
period Indemnitee is an agent of the Company and shall continue thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitrational, administrative or investigative, by reason of
the fact that Indemnitee was serving in the capacity referred to herein.
(b) The Company shall require any successor to the Company (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Company, expressly to assume and agree to perform this Agreement in the same manner and to
the same extent take the Company would be required to perform if no such succession had taken
place.
14. Interpretation of Agreement. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification to the Indemnitee to the
fullest extent permitted by law including those circumstances in which indemnification would
otherwise be discretionary.
15. Severability. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of the Agreement (including without limitation, all
portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraphs of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested
by the provisions held invalid, illegal or unenforceable and to give effect to Section 11 hereof.
16. Modification and Waiver. No supplemental, 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 such waiver constitute a continuing waiver.
17. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted
for by the party addressee or (ii) if mailed by certified or registered mail with postage prepaid,
on the third business day after the mailing date. Address for notice to either party are as shown
on the signature page of this Agreement, or as subsequently modified by written notice.
18. Governing Law. This Agreement shall be governed exclusively by and construed
according to the laws of the State of California as applied to contracts between California
residents entered into and to be performed entirely within California.
8.
19. Consent to Jurisdiction. The Company and the Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of California for all purposes in connection
with any action or proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be brought only in the state court of the State of
California.
9.
The parties hereto have entered into this Indemnity Agreement effective as of the date first
above written.
| COMPANY: | INDEMNITEE: | |||||||||
| Abaxis, Inc. | ||||||||||
By |
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| Name: | Name: | |||||||||
| Address: | ||||||||||
10.
