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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (“
Agreement ”)
is entered into as of
by
and between Xcorporeal, Inc. (“
Company ”),
and
(“
Indemnitee ”).
RECITALS
A. It
is important to the Company to attract and retain as directors
the most capable persons reasonably available.
B. Indemnitee
is becoming a director of the Company.
C. Both
the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors
of companies in today’s environment.
D. The
Company’s Certificate of Incorporation and By-laws (the
“
Constituent Documents ”)
provide that the Company will indemnify its directors and the
Company’s By-laws provide that the Company will advance
expenses in connection therewith, and Indemnitee’s
willingness to serve as a director of the Company is based in part
on Indemnitee’s reliance on such provisions.
E. In
recognition of Indemnitee’s need for substantial
protection against personal liability in order to enhance
Indemnitee’s continued service to the Company in an
effective manner, and Indemnitee’s reliance on the
aforesaid provisions of the Constituent Documents, and to
provide Indemnitee with express contractual indemnification
(regardless of, among other things, any amendment to or
revocation of such provisions or any change in the composition
of the Company’s Board of Directors (the “
Board ”)
or any acquisition or business combination transaction relating to
the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancement of Expenses to
Indemnitee as set forth in this Agreement and, to the extent
insurance is maintained, for the continued coverage of Indemnitee
under the Company’s directors’ and officers’
liability insurance policies.
NOW,
THEREFORE, the parties hereby agree as follows:
1. Definitions.
In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this Agreement
with initial capital letters:
(a)
“
Affiliate ”
has the meaning given to that term in Rule 405 under the
Securities Act of 1933, provided, however, that for purposes of
this Agreement the Company and its subsidiaries will not be deemed
to constitute Affiliates of Indemnitee or the
Indemnitee.
(b)
“
Claim ”
means any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether instituted,
made or conducted by the Company or any other party, including
without limitation any governmental entity, that Indemnitee
determines might lead to the institution of any such action, suit
or proceeding, whether civil, criminal, administrative,
arbitrative, investigative or other.
(c)
“
Expenses ”
includes attorneys’ and experts’ fees, expenses and
charges and all other costs, expenses and obligations paid or
incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing
to defend, be a witness in or participate in, any
Claim.
(d)
“
Indemnifiable Losses ”
means any and all Expenses, damages, losses, liabilities,
judgments, fines, penalties and amounts paid in settlement
(including without limitation all interest, assessments and other
charges paid or payable in connection with or in respect of any of
the foregoing) (collectively, “
Losses ”)
relating to, resulting from or arising out of any act or failure to
act by the Indemnitee, or his or her status as any person referred
to in clause (i) of this sentence, (i) in his or her
capacity as a director, officer, employee or agent of the Company,
any of its Affiliates or any other entity as to which the
indemnitee is or was serving at the request of the Company as a
director, officer, employee, member, manager, trustee or agent of
another corporation, limited liability company, partnership, joint
venture, trust or other entity or enterprise, whether or not for
profit and (ii) in respect of any business, transaction or
other activity of any entity referred to in clause (i) of this
sentence.
2.
Indemnification .
The Company will indemnify and hold harmless Indemnitee, to the
fullest extent permitted by the laws of the State of Delaware in
effect on the date hereof or as such laws may from time to time
hereafter be amended to increase the scope of such permitted
indemnification, against all Indemnifiable Losses relating to,
resulting from or arising out of any Claim. The failure by
Indemnitee to notify the Company of such Claim will not relieve the
Company from any liability hereunder unless, and only to the extent
that, the Company did not otherwise learn of the Claim and such
failure results in forfeiture by the Company of substantial
defenses, rights or insurance coverage. Except as provided
in
Section 16 ,
however, Indemnitee will not be entitled to indemnification
pursuant to this Agreement in connection with any Claim initiated
by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the
initiation of such Claim. If so requested by Indemnitee, the
Company will advance within two business days of such request any
and all Expenses to Indemnitee which Indemnitee determines
reasonably likely to be payable, provided, however, that Indemnitee
will return, without interest, any such advance which remains
unspent at the final conclusion of the Claim to which the advance
related.
3.
Additional Expenses .
Without limiting the generality or effect of the foregoing, the
Company will indemnify Indemnitee against and, if requested by
Indemnitee, will within two business days of such request advance
to Indemnitee, any and all attorneys’ fees and other Expenses
paid or incurred by Indemnitee in connection with any Claim
asserted or brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or
any other agreement or under any provision of the Company’s
Constituent Documents now or hereafter in effect relating to Claims
for Indemnifiable Losses and/or (ii) recovery under any
directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may
be.
4.
Partial Indemnity .
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any
Indemnifiable Loss but not for all of the total amount thereof, the
Company will nevertheless indemnify Indemnitee
for
the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or
in part to an Indemnifiable Loss or in defense of any issue or
matter therein, including without limitation dismissal without
prejudice, Indemnitee will be indemnified against all Expenses
incurred in connection therewith. In connection with any
determination as to whether Indemnitee is entitled to be
indemnified hereunder, there will be a presumption that
Indemnitee is so entitled, which presumption the Company may
overcome only by its adducing clear and convincing evidence to
the contrary.
5.
No Other Presumption .
For purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere or its
equivalent, will not create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular
belief or that a court has determined that
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