EXHIBIT 10.1
FORM OF
BIOLASE TECHNOLOGY,
INC.
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“ Agreement ”) is entered into as of
, 2005 (the “ Effective Date ”), by and between
BIOLASE TECHNOLOGY, INC., a Delaware corporation (the “
Company ”), and
(“ Indemnitee ”).
RECITALS
A. Indemnitee is either a member of
the board of directors of the Company (the “ Board of
Directors ”) or an officer of the Company, or both, and
in such capacity or capacities, or otherwise as an Agent (as
hereinafter defined) of the Company, is performing a valuable
service for the Company.
B. 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 or she be
indemnified as herein provided.
C. It is intended that Indemnitee
shall be paid promptly by the Company all amounts necessary to
effectuate in full the indemnity provided herein.
NOW, THEREFORE, in consideration of
the premises and the covenants in this Agreement, and of Indemnitee
continuing to serve the Company as an Agent and intending to be
legally bound hereby, the parties hereto agree as
follows:
1. Services by Indemnitee .
Indemnitee agrees to serve (a) as a director or an officer of
the Company, or both, so long as Indemnitee is duly appointed or
elected and qualified in accordance with the applicable provisions
of the Certificate of Incorporation and bylaws of the Company, and
until such time as Indemnitee resigns or fails to stand for
election or is removed from Indemnitee’s position, or
(b) as an Agent of the Company. Indemnitee may from time to
time also perform other services at the request or for the
convenience of, or otherwise benefiting, the Company. Indemnitee
may at any time and for any reason resign or be removed from such
position (subject to any other contractual obligation or other
obligation imposed by operation of law), in which event the Company
shall have no obligation under this Agreement to continue
Indemnitee in any such position.
2. Indemnification . Subject
to the limitations set forth herein and in Section 7 hereof,
the Company hereby agrees to indemnify Indemnitee as
follows:
The Company shall, with respect to
any Proceeding (as hereinafter defined) associated with
Indemnitee’s being an Agent of the Company, indemnify
Indemnitee to the fullest extent permitted by applicable law and
the Certificate of Incorporation of the Company in effect on
the
date hereof or as such law or Certificate of
Incorporation may from time to time be amended (but, in the case of
any such amendment, only to the extent such amendment permits the
Company to provide broader indemnification rights than the law or
Certificate of Incorporation permitted the Company to provide
before such amendment). The right to indemnification conferred
herein and in the Certificate of Incorporation shall be presumed to
have been relied upon by Indemnitee in serving or continuing to
serve the Company as an Agent and shall be enforceable as a
contract right. Without in any way diminishing the scope of the
indemnification provided by this Section 2, the Company will
indemnify Indemnitee to the full extent permitted by law if and
wherever Indemnitee is or was a party or is threatened to be made a
party to any Proceeding, including any Proceeding brought by or in
the right of the Company, by reason of the fact that Indemnitee is
or was an Agent or by reason of anything done or not done by
Indemnitee in such capacity, against Expenses (as hereinafter
defined) and Liabilities (as hereinafter defined) actually and
reasonably incurred by Indemnitee or on his or her behalf in
connection with the investigation, defense, settlement or appeal of
such Proceeding. In addition to, and not as a limitation of, the
foregoing, the rights of indemnification of Indemnitee provided
under this Agreement shall include those rights set forth in
Sections 3 and 9 below. Notwithstanding the foregoing, the
Company shall be required to indemnify Indemnitee in connection
with a Proceeding commenced by Indemnitee (other than a Proceeding
commenced by Indemnitee to enforce Indemnitee’s rights under
this Agreement) only if the commencement of such Proceeding was
authorized by the Board of Directors.
3. Advancement of Expenses .
All reasonable Expenses incurred by or on behalf of Indemnitee
(including costs of enforcement of this Agreement) shall be
advanced from time to time by the Company to Indemnitee within
thirty (30) days after the receipt by the Company of a written
request for an advance of Expenses, whether prior to or after final
disposition of a Proceeding (except to the extent that there has
been a Final Adverse Determination (as hereinafter defined) that
Indemnitee is not entitled to be indemnified for such Expenses),
including, without limitation, any Proceeding brought by or in the
right of the Company. The written request for an advancement of any
and all Expenses under this paragraph shall contain reasonable
detail of the Expenses incurred by Indemnitee. In the event that
such written request shall be accompanied by an affidavit of
counsel to Indemnitee to the effect that such counsel has reviewed
such Expenses and that such Expenses are reasonable in such
counsel’s view, then such expenses shall be deemed reasonable
in the absence of clear and convincing evidence to the contrary. By
execution of this Agreement, Indemnitee shall be deemed to have
made whatever undertaking as may be required by law at the time of
any advancement of Expenses with respect to repayment to the
Company of such Expenses. In the event that the Company shall
breach its obligation to advance Expenses under this
Section 3, the parties hereto agree that Indemnitee’s
remedies available at law would not be adequate and that Indemnitee
would be entitled to specific performance.
4. Surety Bond .
(a) In order to secure the
obligations of the Company to indemnify and advance Expenses to
Indemnitee pursuant to this Agreement, the Company shall obtain at
the time of any Change in Control (as hereinafter defined) a surety
bond (the “ Bond ”). The Bond shall be in
an
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appropriate amount not less than one million
dollars ($1,000,000), shall be issued by a commercial insurance
company or other financial institution headquartered in the United
States having assets in excess of $10 billion and capital according
to its most recent published reports equal to or greater than the
then applicable minimum capital standards promulgated by such
entity’s primary federal regulator and shall contain terms
and conditions reasonably acceptable to Indemnitee. The Bond shall
provide that Indemnitee may from time to time file a claim for
payment under the Bond, upon written certification by Indemnitee to
the issuer of the Bond that (i) Indemnitee has made written
request upon the Company for an amount not less than the amount
Indemnitee is drawing under the Bond and that the Company has
failed or refused to provide Indemnitee with such amount in full
within thirty (30) days after receipt of the request, and
(ii) Indemnitee believes that he or she is entitled under the
terms of this Agreement to the amount that Indemnitee is drawing
upon under the Bond. The issuance of the Bond shall not in any way
diminish the Company’s obligation to indemnify Indemnitee
against Expenses and Liabilities to the full extent required by
this Agreement.
(b) Once the Company has obtained
the Bond, the Company shall maintain and renew the Bond or a
substitute Bond meeting the criteria of Section 4(a) during
the term of this Agreement so that the Bond shall have an initial
term of five (5) years, be renewed for successive five-year
terms, and always have at least one (1) year of its term
remaining.
5. Presumptions and Effect of
Certain Proceedings . Upon making a request for
indemnification, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the
burden of proof to overcome that presumption in reaching any
contrary determination. The termination of any Proceeding by
judgment, order, settlement, arbitration award or conviction, or
upon a plea of nolo contendere or its equivalent shall not affect
this presumption or, except as determined by a judgment or other
final adjudication adverse to Indemnitee, establish a presumption
with regard to any factual matter relevant to determining
Indemnitee’s rights to indemnification hereunder. If the
person or persons so empowered to make a determination pursuant to
Section 6 hereof shall have failed to make the requested
determination within ninety (90) days after any judgment,
order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere or its equivalent, or other
disposition or partial disposition of any Proceeding or any other
event that could enable the Company to determine Indemnitee’s
entitlement to indemnification, the requisite determination that
Indemnitee is entitled to indemnification shall be deemed to have
been made.
6. Procedure for Determination of
Entitlement to Indemnification .
(a) Whenever Indemnitee believes
that Indemnitee is entitled to indemnification pursuant to this
Agreement, Indemnitee shall submit a written request for
indemnification to the Company. Any request for indemnification
shall include sufficient documentation or information reasonably
available to Indemnitee for the determination of entitlement to
indemnification. In any event, Indemnitee shall submit
Indemnitee’s claim for indemnification within a reasonable
time, not to exceed five (5) years after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of
a plea of nolo contendere or its
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equivalent, or final determination, whichever is
the later date for which Indemnitee requests indemnification. The
Secretary or other appropriate officer shall, promptly upon receipt
of Indemnitee’s request for indemnification, advise the Board
of Directors in writing that Indemnitee has made such request.
Determination of Indemnitee’s entitlement to indemnification
shall be made not later than ninety (90) days after the
Company’s receipt of Indemnitee’s written request for
such indemnification, provided that any request for indemnification
for Liabilities, other than amounts paid in settlement, shall have
been made after a determination thereof in a Proceeding.
(b) The Company shall be entitled to
select the forum in which Indemnitee’s entitlement to
indemnification will be heard; provided, however, that if there is
a Change in Control of the Company, Independent Legal Counsel (as
hereinafter defined) shall determine whether Indemnitee is entitled
to indemnification. The forum shall be any one of the
following:
(i) the stockholders of the
Company;
(ii) a majority vote of
Disinterested Directors (as hereinafter defined), even though less
than a quorum;
(iii) Independent Legal Counsel,
whose determination shall be made in a written opinion;
or
(iv) a panel of three
(3) arbitrators, one selected by the Company, another by
Indemnitee and the third by the first two arbitrators; or if for
any reason three (3) arbitrators are not selected within
thirty (30) days after the appointment of the first
arbitrator, then selection of additional arbitrators shall be made
by the American Arbitration Association. If any arbitrator resigns
or is unable to serve in such capacity for any reason, the American
Arbitration Association shall select such arbitrator’s
replacement. The arbitration shall be conducted pursuant to the
commercial arbitration rules of the American Arbitration
Association now in effect.
7. Specific Limitations on
Indemnification . Notwithstanding anything in this Agreement to
the contrary, the Company shall not be obligated under this
Agreement to make any payment to Indemnitee with respect to any
Proceeding:
(a) To the extent that payment is
actually made to Indemnitee under any insurance policy, or is made
to Indemnitee by the Company or an affiliate otherwise than
pursuant to this Agreement. Notwithstanding the availability of
such insurance, Indemnitee also may claim indemnification from the
Company pursuant to this Agreement by assigning to the Company any
claims under such insurance to the extent Indemnitee is paid by the
Company;
(b) Provided there has been no
Change in Control, for Liabilities in connection with Proceedings
settled without the Company’s consent, which consent,
however, shall not be unreasonably withheld;
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(c) For an accounting of profits
made from the purchase or sale by Indemnitee of securities of the
Company within the meaning of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), or similar provisions of any state statutory or common
law; or
(d) To the extent it would be
otherwise prohibited by law, if so established by a judgment or
other final adjudication adverse to Indemnitee.
8. Fees and Expenses of
Independent Legal Counsel or Arbitrators . The Company agrees
to pay the reasonable fees and expenses of Independent Legal
Counsel or a panel of three arbitrators should such Independent
Legal Counsel or such arbitrators be retained to make a
determination of Indemnitee’s entitlement to indemnification
pursuant to Section 6(b) of this Agreement, and to fully
indemnify such Independent Legal Counsel or arbitrators against any
and all expenses and losses incurred by any of them arising out of
or relating to this Agreement or their engagement pursuant
hereto.
9. Remedies of Indemnitee
.
(a) In the event that (i) a
determination pursuant to Section 6 hereof is made that
Indemnitee is not entitled to indemnification, (ii) advances
of Expenses are not made pursuant to this Agreement,
(iii) payment has not been timely made following a
determination of entitlement to indemnification pursuant to this
Agreement or (iv) Indemnitee otherwise seeks enforcement of
this Agreement, Indemnitee shall be entitled to a final
adjudication in the Court of Chancery of the State
