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EXHIBIT 10.62
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("AGREEMENT") is made effective as of
the
____ day of _________, 2005 by and between
CARDIAC SCIENCE CORPORATION, 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. The
Company's Certificate of Incorporation and Bylaws contain
certain
provisions providing for indemnification of
the Company's directors and officers
to the fullest extent permitted by the
Delaware General Corporation Law.
D. 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
Proceeding (other than an action by or in
the right of the Company) by reason of
the Indemnitee's Corporate Status, against
Expenses, 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 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 Proceeding, had no reasonable
cause to believe Indemnitee's conduct
was unlawful. The termination of any
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 Proceeding, that
Indemnitee had reasonable cause to believe
that Indemnitee's conduct was
unlawful.
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(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 Proceeding 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 Indemnitee's
Corporate Status, against Expenses 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
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 its
stockholders, except that no
indemnification shall be made in respect of
any claim, issue or matter in such
Proceeding 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
Proceeding 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 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 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 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 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 Disinterested
Directors, even though less than a quorum,
(ii) by a majority vote of a committee of
Disinterested Directors designated by
a majority vote of Disinterested Directors,
even though less than a quorum,
(iii) if there are no Disinterested
Directors or if the Disinterested Directors
so direct, by Independent Legal Counsel ,
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 (iv) 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.
2.
Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all
Expenses
incurred by Indemnitee in connection with
the investigation, defense, settlement
or appeal of any Proceeding referenced in
Section l(a) or Section 1(b) hereof
(including amounts actually paid in
settlement of any such 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
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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 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 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
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
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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
