EXHIBIT 10.6
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("AGREEMENT") is made effective as of the
____ day of _________, 2003 by and between XXXXXXX CARDIOLOGY SYSTEMS, INC., a
Delaware corporation (the "COMPANY"), and ______________ ("INDEMNITEE").
RECITALS
A. The Company and Indemnitee recognize the continuing 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.
B. The Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting officers and directors
to expensive litigation risks at the same time as the availability and coverage
of liability insurance has been limited.
C. To attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve as officers and directors of the Company and to
indemnify its officers and directors so as to provide them with the maximum
protection permitted by law, the Company and Indemnitee now agree that they
should enter into this Indemnification Agreement.
AGREEMENT
1. Indemnification.
(a) Third Party Proceedings. The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that Indemnitee shall be, is or
was, or shall have been, a director, officer, employee or agent of the Company,
or any subsidiary of the Company or by reason of the fact that Indemnitee shall
serve, is or was serving, or shall have served, at the request of the Company as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with such
action, suit or proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action, suit or proceeding, had
no reasonable cause to believe Indemnitee's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, and, with respect to any
criminal action, suit or proceeding, that Indemnitee had reasonable cause to
believe that Indemnitee's conduct was unlawful.
(b) Proceedings By or in the Right of the Company. The Company
shall indemnify Indemnitee if Indemnitee was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Company or any subsidiary of the Company to procure a judgment
in its favor by reason of the fact that Indemnitee shall be, is or was, or shall
have been, a director, officer, employee or agent of the Company, or any
subsidiary of the Company or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) and, to the fullest extent
permitted by law, amounts paid in settlement (if such settlement is approved in
advance by the Company, such approval not to be unreasonably withheld or
delayed), in each case to the extent actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such action or suit
if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company and its
stockholders, except that no indemnification shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have been adjudged to be
liable to the Company in the performance of Indemnitee's duty to the Company and
its stockholders unless and only to the extent that the court in which such
action or suit is or was pending shall determine upon application that, in view
of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for expenses (including attorneys' fees) which such court
shall deem proper.
(c) Mandatory Payment of Expenses. To the extent that Indemnitee
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1(a) or Section 1(b) or the defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by Indemnitee in
connection therewith.
(d) Other Payment of Expenses. Other than for indemnification of
expenses by the Company pursuant to Section 1(c) or otherwise ordered by a court
of law, Indemnitee shall be indemnified by the Company against expenses
(including attorneys' fees) actually and reasonably incurred by Indemnitee only
if authorized in a specific case upon a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct set forth in Section 1(a) or Section 1(b), as
applicable, which determination shall be made by one of the following methods
(as chosen by the Company): (i) by a majority vote of the directors who are not
parties to the applicable action, suit or proceeding ("DISINTERESTED
DIRECTORS"), even though less than a quorum may have been present, or by a
committee of Disinterested Directors appointed thereby, (ii) by Independent
Legal Counsel (as such term is defined below), reasonably acceptable to
Indemnitee and the Company, in a written opinion applying the applicable
standard of conduct set forth in Section 1(a) or Section 1(b), as applicable, or
(iii) by the stockholders of the Company applying the applicable standard of
conduct set forth in Section 1(a) or Section 1(b), as applicable; provided,
that, in any case, all
requirements of applicable law have been met. For purposes of this Section 1(d),
"INDEPENDENT LEGAL COUNSEL" shall mean a law firm, or a member of a law firm,
that is experienced in matters of corporate law and neither presently is, nor in
the past five years has been, retained to represent: (A) the Company or
Indemnitee in any matter (other than jointly with respect to the rights of
Indemnitee under this Agreement or other indemnities, under similar indemnity
agreements); or (B) any other party to the action, suit or proceeding giving
rise to a claim for indemnification hereunder; provided, however, Independent
Legal Counsel shall not include any firm or person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to
determine Indemnitee's rights under this Agreement.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all
expenses (including attorneys' fees), incurred by Indemnitee in connection with
the investigation, defense, settlement or appeal of any civil or criminal
action, suit or proceeding referenced in Section l(a) or Section 1(b) hereof
(including amounts actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that Indemnitee is
not entitled to be indemnified by the Company as authorized hereby. The advances
to be made hereunder shall be paid promptly by the Company to Indemnitee
following delivery of a written request therefor by Indemnitee to the Company
which request provides documentation supporting such advances.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to the right to be indemnified under this Agreement, give
the Company notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the Chief Executive
Officer of the Company at the address shown on the signature page of this
Agreement (or such other address as the Company shall designate in writing to
Indemnitee). Omission of such Notice does not relieve the Company from any
obligation that it may have to Indemnitee under this Agreement or otherwise
unless and only to the extent that such omission can be shown to have prejudiced
the Company. Notice shall be deemed received three business days after the date
postmarked if sent by domestic certified or registered mail, properly addressed;
otherwise notice shall be deemed received when such notice shall actually be
received by the Company. In addition, Indemnitee shall give the Company such
information and cooperation as the Company may reasonably require and as shall
be within Indemnitee's power.
(c) Procedure.
(i) Any indemnification and advances provided for in Section 1
and/or Section 2, shall be made as soon as practicable, but in no event no later
than forty-five (45) days after receipt of the written request of Indemnitee. If
a claim under this Agreement, under any statute, or under any provision of the
Company's Certificate of Incorporation or Bylaws, as such are amended from time
to time, providing for indemnification, is not paid in full by the Company
within forty-five (45) days after a written request for payment thereof has
first been received by
the Company, Indemnitee may, but need not, at any time thereafter bring an
action against the Company to recover the unpaid amount of the claim (an
"ENFORCEMENT ACTION") and, subject to Section 12 of this Agreement, Indemnitee
shall also be entitled to be paid for the expenses (including attorneys' fees)
of bringing an Enforcement Action. It shall be a defense to any such Enforcement
Action (other than an action brought to enforce a claim for expenses (including
attorneys' fees) incurred in connection with any action, suit or proceeding in
advance of its final disposition) that Indemnitee has not met the standards of
conduct which make it permissible under applicable law for the Company to
indemnify Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the Company, and Indemnitee shall be entitled to receive
interim payments of expenses (including attorneys' fees) pursuant to Section
2(a) unless and until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. It is the parties'
intention that if the Company contests Indemnitee's right to indemnification,
the question of Indemnitee's right to indemnification shall be for the court to
decide, and neither the failure of the Company (including its Board of
Directors, any committee or subgroup of the Board of Directors, Independent
Legal Counsel or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by applicable law, nor an
actual determination by the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, Independent Legal Counsel or
its stockholders) that Indemnitee has not met such applicable standard of
conduct, shall be a defense to an Enforcement Action or create a presumption
that Indemnitee has or has not met the applicable standard of conduct. In
addition, in an Enforcement Action, the Company shall conclusively be presumed
to have entered into this Agreement and assumed the obligations imposed on it to
induce Indemnitee to accept the position of, or to continue as a director and/or
officer of, the Company.
(ii) During the interval between the Company's receipt of such
a request under paragraph (b) of this Section 2, and the later to occur of (x)
payment in full to Indemnitee of the indemnification or advances required by
Section 1 and Section 2 or (y) a determination (if required) pursuant to this
Agreement and applicable law that Indemnitee is not entitled to indemnification
hereunder, the Company shall take all necessary steps (whether or not such steps
require expenditures to be made by the Company at that time), to stay (pending a
final determination of Indemnitee's entitlement to indemnification and, if
Indemnitee is so entitled, the payment thereof) the execution, enforcement or
collection of any judgments, penalties, fines or any other amounts for which
Indemnitee may be liable (and as to which Indemnitee has requested
indemnification hereunder) in order to avoid Indemnitee being or becoming in
default with respect to any such amounts (such necessary steps to include, but
not be limited to, the procurement of a surety bond to achieve such stay or a
loan to Indemnitee of amounts for which Indemnitee may be liable and as to which
a stay of execution as aforesaid cannot be obtained), promptly after receipt of
Indemnitee's written request therefor together with a written undertaking by
Indemnitee to repay promptly following receipt of a statement therefor from the
Company, amounts (if any) expended by the Company for such purpose, if it is
ultimately determined (if such determination is required) that Indemnitee is not
entitled to be indemnified against such judgments, penalties, fines or other
amounts.
(d) Notice to Insurers. If, at the time of the receipt of a notice
of a claim pursuant to Section 2(b) hereof, the Company has director and officer
liability insurance in effect, the Company shall give prompt notice of the
commencement of such action, suit or 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 Indemnitee, all amounts payable as a result of such action, suit or
proceeding in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be
obligated under Section 2(a) hereof to pay the expenses (including attorneys'
fees) of any action, suit or proceeding against Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such action, suit or
proceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee
of written notice of its election so to do. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this Agreement for
any fees of counsel subsequently incurred by Indemnitee with respect to the same
action, suit or proceeding, provided that (i) Indemnitee shall have the right to
employ counsel in any such action suit or proceeding at Indemnitee's expense;
and (ii) if (A) the employment of counsel by Indemnitee has been previously
authorized by the Company, (B) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of any such defense, (C) the Company shall not, in fact, have employed
counsel to assume the defense of such action, suit or proceeding or (D) the
Company is not financially or legally able to perform its indemnification
obligations, then the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the defense
of any claim, action, suit or proceeding brought by or on behalf of the Company
against Indemnitee or as to which Indemnitee shall have made the conclusion
provided for in (ii) (B) or (D) above.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this Agreement,
the Company hereby agrees to indemnify Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company's Certificate
of Incorporation or Bylaws, as such are amended from time to time, or by
statute. In the event of any change, after the date of this Agreement, in any
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, such
changes, to the extent not otherwise required by such law, statute or rule to be
applied to this Agreement shall have no effect on this Agreement or the parties'
rights and obligations hereunder. In the event of any change, after the date of
this Agreement, in any applicable law, statute, or rule which expands the right
of a Delaware corporation to indemnify a member of its board of directors or an
officer, it is the intent of the parties hereto that Indemnitee shall, without
the necessity of amending this Agreement, be entitled to the full benefit of
such expanded indemnification rights. Indemnitee's rights under this Agreement
are contractual rights which may not be diminished, modified or restricted by
any subsequent change in the Company's Certificate of Incorporation, Bylaws or
corporate policies, as such are amended from time to time.
(b) Nonexclusivity. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which Indemnitee may be entitled
under the Company's Certificate of Incorporation, or Bylaws, as such may be
amended from time to time, any agreement, any vote of stockholders or
disinterested Directors, the Corporation Law of the State of Delaware, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in another capacity while holding such office. The indemnification provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity even though Indemnitee may have
ceased to serve in such capacity at the time of any action, suit or other
covered proceeding.
4. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses (including attorneys' fees), judgments, fines or
penalties actually or reasonably incurred in the investigation, defense, appeal
or settlement of any civil, criminal, administrative or investigative action,
suit or proceeding, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or penalties to which Indemnitee
is entitled.
5. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or public policy may override applicable
state law and prohibit the Company from indemnifying Indemnitee under this
Agreement or otherwise. For example, the Company and Indemnitee acknowledge that
the Securities and Exchange Commission (the "SEC") has taken the position that
indemnification is not permissible for liabilities arising under certain federal
securities laws, and federal legislation prohibits indemnification for certain
ERISA violations. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the SEC to submit
the question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee.
6. Officer and Director Liability Insurance.
(a) The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of insurance with reputable insurance carriers to
provide the officers and directors of the Company with coverage for losses
caused by wrongful acts, or to ensure the Company's ability to perform its
indemnification obligations under this Agreement. Among other considerations,
the Company will weigh the costs of obtaining such insurance coverage against
the protection afforded by such coverage. In all policies of director and
officer liability insurance, Indemnitee, so long as he or she is a director or
officer of the Company, shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company's directors, if Indemnitee is a director; or of
the Company's officers, if Indemnitee is not a director of the Company but is an
officer. Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain such insurance if the Company determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are
disproportionate to the amount of coverage provided, if the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient benefit
or if Indemnitee is covered by similar insurance maintained by a subsidiary or
parent of the Company.
7. Severability. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 7. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
8. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance
expenses (including attorneys' fees) to Indemnitee with respect to actions,
suits, proceedings or claims initiated or brought voluntarily by Indemnitee and
not by way of defense, except with respect to actions, suits or proceedings
brought to establish or enforce a right to indemnification under this Agreement
or any other statute or law or otherwise as required under Section 145 of
theGeneral Corporation Law of the State of Delaware, but such indemnification or
advancement of expenses (including attorneys' fees) may be provided by the
Company in specific cases if the Board of Directors has approved the initiation
or bringing of such suit;
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses
(including attorneys' fees) incurred by Indemnitee with respect to any action,
suit or proceeding instituted by Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the
material assertions made by Indemnitee in such action, suit or proceeding was
not made in good faith or was frivolous;
(c) Insured Claims. To indemnify Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) which
have been paid directly to Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the Company or by
plaintiff;
(d) Claims Under Section 16(b). To indemnify Indemnitee for
expenses (including attorneys' fees) or the payment of profits 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, or any similar successor
statute; or
(e) Settlement. To indemnify Indemnitee for any amounts paid in
settlement of any claim, action, suit or proceeding effected without the written
consent of the Company;
provided, however, the Company shall not settle any claim, action, suit or
proceeding in any manner which would impose any penalty or limitation on
Indemnitee without the written consent of Indemnitee; provided further, that
neither the Company nor Indemnitee shall unreasonably withhold written consent
to any proposed settlement.
9. No Employment Rights. Nothing contained in this Agreement is
intended to create in Indemnitee any right to continued employment.
10. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to the "Company"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that if Indemnitee is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and references to "serving at the request of the Company" shall
include any service as a director, officer, employee or agent of the Company
which 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 if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
Agreement.
11. Counterparts. This Agreement, and any modification, amendment or
waiver of this Agreement, may be executed in one or more counterparts, each of
which shall constitute an original.
12. Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
13. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the
name of the Company under this Agreement or to enforce or interpret any of the
terms of this Agreement, Indemnitee shall be entitled to be paid all court costs
and expenses, including attorneys' fees, incurred by Indemnitee in defense of
such action (including with respect to Indemnitee's counterclaims and
cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee's material defenses to such action were made
in bad faith or were frivolous.
14. 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, on the date of such
receipt, or (ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked. Addresses for
notice to either party are as shown on the signature page of this Agreement, or
as subsequently modified by written notice.
15. Choice of Law. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the State of Delaware,
without giving effect to principles of conflict of law.
16. Modification. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. All prior
negotiations, agreements and understandings between the parties with respect
thereto are superseded hereby. This Agreement may not be modified or amended
except by an instrument in writing signed by or on behalf of the parties hereto.
17. 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 documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
to effectively bring suit to enforce such rights.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
XXXXXXX CARDIOLOGY SYSTEMS, INC.
By:
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Name:
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Title:
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Address: 0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: President
AGREED TO AND ACCEPTED BY
INDEMNITEE:
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(signature)
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(address)
