INDEMNIFICATION
AGREEMENT
INDEMNIFICATION AGREEMENT (this “ Agreement
”) dated as of ___, 2006 by and between Restore Medical, Inc.
(the “ Company ”), a Delaware corporation, and
(“ Indemnitee ”):
WHEREAS ,
competent persons are reluctant to serve a corporation as a
director, officer or in another capacity unless they are provided
with 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 corporations;
WHEREAS ,
the Board of Directors of the Company has determined that the
ability to attract and retain such persons is in to the best
interests of the Company’s stockholders and that the Company
should act to assure such persons that there will be increased
certainty of such protection in the future; and
WHEREAS ,
it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the
fullest extent permitted by applicable law so that they will serve
or continue to serve the Company free from undue concern that they
will not be so indemnified; and
WHEREAS ,
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 Indemnitee be so indemnified;
NOW,
THEREFORE , in consideration of the premises, the mutual
agreements herein set forth below and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1.
Definitions . For purposes of this Agreement the following
terms shall have the meanings set forth below:
(a) “
Board ” shall mean the Board of Directors of the
Company.
(b) “
Corporate Status ” describes the status of a person
who is or was a director, officer, employee, agent or fiduciary of
the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which
such person is or was serving at the express written request of the
Company.
(c) “
Disinterested Director ” means a director of the
Company who is not and was not a party to the Proceeding in respect
of which indemnification is sought by Indemnitee.
(d) “
Enterprise ” shall mean the Company and any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise of which Indemnitee is or was serving at
the express written request of the Company as a director, officer,
employee, agent or fiduciary.
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(e) “
Expenses ” shall include all attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, being or preparing to be a witness in a
Proceeding.
(f) “
Good Faith ” shall mean Indemnitee having 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, having had no reasonable cause
to believe Indemnitee’s conduct was unlawful.
(g) “
Independent Counsel ” means a law firm, or a member of
a law firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained
to represent: (i) the Company or Indemnitee in any matter
material to either such party or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “ Independent
Counsel ” shall not include any 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.
(h) “
Proceeding ” includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other actual, threatened or completed
proceeding whether civil, criminal, administrative or
investigative, other than one initiated by Indemnitee. For purposes
of the foregoing sentence, a “ Proceeding ”
shall not be deemed to have been initiated by Indemnitee where
Indemnitee seeks pursuant to Section 8 of this Agreement to
enforce Indemnitee’s rights under this Agreement.
2. Term
of Agreement . This Agreement shall continue until and
terminate upon the later of: (a) 10 years after the date
that Indemnitee has ceased to serve as a director, officer,
employee, agent or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which Indemnitee served at the express
written request of the Company or (b) the final termination of
all pending Proceedings in respect of which Indemnitee is granted
rights of indemnification or advancement of expenses hereunder and
of any proceeding commenced by Indemnitee pursuant to
Section 8 of this Agreement relating thereto.
3. Services
by Indemnitee, Notice of Proceedings.
(a)
Services . Indemnitee agrees to serve as a director of the
Company. Indemnitee may at any time and for any reason resign from
such position (subject to any other contractual obligation or any
obligation imposed by operation of law).
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(b)
Notice of Proceeding . Indemnitee agrees promptly to notify
the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter that may be subject
to indemnification or advancement of Expenses covered
hereunder.
(a) In
General . In connection with any Proceeding, the Company shall
indemnify and advance Expenses to Indemnitee as provided in this
Agreement and to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable
law may thereafter from time to time permit.
(b)
Proceedings Other Than Proceedings by or in the Right of the
Company . Indemnitee shall be entitled to the rights of
indemnification provided in this Section 4(b) if, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is
threatened to be made, a party to any Proceeding, other than a
Proceeding by or in the right of the Company. Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and
amounts paid in settlements actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee
acted in Good Faith.
(c)
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 4(c) if, by reason of Indemnitee’s Corporate Status,
Indemnitee is or is threatened to be made a party to any Proceeding
brought by or in the right of the Company to procure a judgment in
its favor. Indemnitee shall be indemnified against Expenses,
judgments, penalties and amounts paid in settlement, actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with such Proceeding if Indemnitee acted in Good
Faith. Notwithstanding the foregoing, no such 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 if applicable law prohibits such indemnification;
provided, however , that, if applicable law so permits,
indemnification shall nevertheless be made by the Company in such
event if and only to the extent that the Court of Chancery of the
State of Delaware, or the court in which such Proceeding shall have
been brought or is pending, shall determine.
(d)
Indemnification of a Party Who is Wholly or Partly
Successful . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified to the maximum extent permitted by law against all
Expenses, judgments, penalties, fines and amounts paid in
settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. If Indemnitee is
not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify
Indemnitee to the maximum extent permitted by law, against all
Expenses, judgments, penalties, fines and amounts paid in
settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Section 4(d)
and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter, so long as there has been no finding
(either adjudicated or pursuant to Section 6) that Indemnitee
did not act in Good Faith.
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(e)
Indemnification for Expenses of a Witness . Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee’s Corporate Status, a
witness in any Proceeding, Indemnitee shall be indemnified against
all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
5.
Advancement of Expenses . Notwithstanding any provision to
the contrary in Section 6, the Company shall advance all Expenses
which, by reason of Indemnitee’s Corporate Status, were
incurred by or on behalf of Indemnitee in connection with any
Proceeding, within 20 days after the receipt by the Company of
a statement or statements from Indemnitee requesting such advance
or advances, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee and shall be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to
repay any Expenses if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified against such Expenses.
Any advance and undertakings to repay pursuant to this
Section 5 shall be unsecured and interest free.
6.
Procedures for Determination of Entitlement to
Indemnification
(a)
Initial Request . To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the
Company shall promptly advise the Board in writing that Indemnitee
has requested indemnification.
(b)
Method of Determination . A determination (if required by
applicable law) with respect to Indemnitee’s entitlement to
indemnification shall be made by the Board by a majority vote of
Disinterested Directors, even though less than a quorum. In the
event that there are no Disinterested D
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