Exhibit 10.2
ACCESS
AGREEMENT
This Access Agreement
(“Agreement”) is made effective as of March 1,
2009 by and between ResMed Inc., a Delaware corporation (the
“Company”), and
(“Indemnitee”).
RECITALS
WHEREAS, the Company’s Board
of Directors has determined that it is appropriate, in order to
attract and retain qualified individuals to serve as directors or
in other capacities to provide adequate protection through
insurance or adequate indemnification against inordinate risks of
claims and actions against them arising out of their service to and
activities on behalf of the corporation;
WHEREAS, the Board of Directors of
the Company (the “Board”) has determined that, in order
to attract and retain qualified individuals, the Company will
attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities.
WHEREAS, Indemnitee and the Company
have previously entered into an Indemnification Agreement (the
“Indemnification Agreement”) effective as of
March 1, 2009, setting forth certain rights and obligations
regarding the Company providing indemnity and advancing expenses in
connection with certain “Proceedings” as that term is
defined in the Indemnification Agreement;
WHEREAS, Indemnitee does not regard
the protection available under the Company’s By-laws and
insurance as adequate in the present circumstances, and may not be
willing to serve as a director without additional rights to access
to corporate documents in the event of a Proceeding, and the
Company desires Indemnitee to serve in such capacity. Indemnitee is
willing to serve, continue to serve and to take on additional
service for or on behalf of the Company on the condition that he be
granted such access; and
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1.
Definitions.
As used in this
agreement,
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a)
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“Board
Documents” means:
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i)
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all material
circulated to Indemnitee during Indemnitee’s service as a
board member, whether in documentary form or some other form
including without limitation board papers, submissions, minutes,
memoranda, legal opinions, financial statements, subcommittee
papers and copies of other material made available to Indemnitee;
and
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ii)
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any other
documents which are referred to in any of that material.
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b)
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the term
“Proceeding” will have the same meaning defined in
Section 2(h) of the Indemnity Agreement.
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Section 2. Access to Board
Documents.
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a)
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The Company
must, following a request by Indemnitee at any time during the
duration of this Agreement:
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i)
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give Indemnitee
(or a person nominated in writing by Indemnitee) access to inspect
the Board Documents in Company’s possession or control at the
Company’s registered office (or such other place agreed to by
the Company and Indemnitee); and
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ii)
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provide
Indemnitee with one copy of any Board Documents in Company’s
possession or control requested by Indemnitee at no cost to
Indemnitee whether or not a copy has been previously delivered to
Indemnitee.
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b)
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The request
made under section 2(a) must:
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ii)
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state the Board
Documents or class of Board Documents to which access is requested,
or of which copies are requested, including the dates (if possible)
of those Board Documents.
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Section 3. Confidentiality
and Privilege.
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a)
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Indemnitee must
not disclose any confidential information contained in the Board
Documents to third parties unless:
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i)
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the Company has
given its prior written consent;
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ii)
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Indemnitee is
required to do so by law;
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iii)
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the disclosure
is made for the purpose of obtaining professional advice and
Indemnitee uses his best efforts to ensure all matters disclosed
are kept confidential; or
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iv)
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the disclosure
is made for the purpose of defending, appealing, commencing or
settling Proceedings or the threat of Proceedings and Indemnitee
uses his best efforts to ensure all matters disclosed are kept
confidential.
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b)
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Where
Indemnitee is entitled to disclose confidential information under
Section 3(a) and the Board Documents include any information
to which the attorney-client or other professional privilege
attaches, Indemnitee must use his best efforts not to waive the
privilege.
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Section 4.
Proceedings.
Indemnitee’s right to inspect,
copy and use the Board Documents shall not be affected by reason of
Proceedings against Indemnitee, even if the proceedings are brought
or contemplated by or on behalf of the Company.
Section 5. Use of Board
Documents.
Indemnitee must not use the Board
Documents in a manner contrary to the interests of Company, except
in the circumstances described in Section 4 (to the extent
that use in such circumstances is not in breach of
Indemnitee’s duties to Company at the time of such
use).
Section 6. Copies of
Insurance Policies.
At the request of Indemnitee, the
Company must provide the Indemnitee, at Company’s expense,
with a copy of:
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a)
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the policy of
insurance; and
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b)
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the certificate
of insurance,
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in respect of any
Directors & Officers’ or other liability insurance
agreement maintained at the time of the request, or maintained at
such other times as Indemnitee may reasonably request, except where
such disclosure would involve a breach of the terms and conditions
of the policy.
Section 7. Maintenance of
Documents.
Nothing in this agreement obligates
the Company to maintain or preserve Board Documents, documents
related to insurance policies, or any other documents beyond such
time as Company deems it appropriate, in its sole
discretion.
Section 8. Duration of
Agreement.
This Agreement will continue until
and terminate upon the later of:
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a)
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ten
(10) years after the date that Indemnitee will have ceased to
serve as a director, officer, employee, or agent of the Company, or
at the request of the Company, as a director, officer, employee,
agent, or fiduciary of
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