Exhibit 10.65
INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (the “ Agreement ”) is
made and entered into as of _____ _____ ,
2008, between MIMEDX GROUP, INC. , a Florida corporation
(the “ Company ”), and _____
(“ Indemnitee ”).
WITNESSETH:
WHEREAS, it is
essential to the Company that it be able to retain and attract as
officers and directors the most capable persons available;
WHEREAS,
increased corporate litigation has subjected officers and directors
to litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have
made it increasingly difficult for companies to attract and retain
such persons;
WHEREAS, the
Company desires to provide Indemnitee with specific contractual
assurance of Indemnitee’s rights to full indemnification
against litigation risks and expenses (regardless, among other
things, of any amendment to the Company’s Articles of
Incorporation or revocation of any provision of the Company’s
Bylaws or any change in the ownership of the Company or the
composition of its Board of Directors);
WHEREAS,
Indemnitee is relying upon the rights afforded under this Agreement
in accepting or continuing to serve Indemnitee’s position as
an officer or director of the Company; and
WHEREAS,
capitalized terms used herein and not otherwise defined shall the
meaning ascribed to them in Section 14 hereof.
NOW,
THEREFORE, in consideration of Indemnitee’s agreement to
serve as an officer or director, the parties hereto agree as
follows:
1.
Indemnity of Indemnitee . The Company hereby agrees to hold
harmless and indemnify Indemnitee to the fullest extent permitted
by law. In furtherance of the foregoing indemnification, and
without limiting the generality thereof, the Company agrees as
follows:
(a)
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 1(a) if, by
reason of his Corporate Status, the Indemnitee is, or is threatened
to be made, a party to or participant in any Proceeding other than
a Proceeding by or in the right of the Company. Pursuant to this
Section 1(a) , Indemnitee shall be indemnified against
all Expenses and Liabilities incurred by him, or on his behalf, in
connection with such Proceeding or any claim, issue or matter
therein, if the Indemnitee acted in good faith and in a manner the
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 the
Indemnitee’s conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement, or conviction
or
upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the Indemnitee did not act in
good faith and in a manner which he reasonably believed to be in,
or not opposed to, the best interests of the Company or, with
respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
(b)
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 1(b) if, by reason of his Corporate Status, the
Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding brought by or in the right of the
Company. Pursuant to this Section 1(b) , Indemnitee
shall be indemnified against all Expenses and amounts paid in
settlement not exceeding, in the judgment of the Board of
Directors, the estimated expense of litigating the Proceeding to
conclusion, actually and reasonably incurred in connection with the
defense or settlement of such Proceeding, including any appeal
thereof, if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the Company; provided, however, if applicable law
so provides, no indemnification shall be made under this subsection
in respect of any Proceeding as to which the Indemnitee shall have
been adjudged to be liable unless, and only to the extent that, the
court in which such Proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all
circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses which such court shall deem
proper.
(c)
Indemnification for Expenses 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 his
Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified against all
Expenses and Liabilities incurred by him or on his 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 against all
Expenses incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this
Section 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. All determinations regarding the allocation
of Expenses incurred in connection with each successfully resolved
claim, issue or matter under this Section 1(c) shall be
made in accordance with Section 6(b) of this
Agreement.
2.
Settlement of Claims . The Company shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in
settlement of any Proceeding effected without the Company’s
written consent. The Company shall not settle any Proceeding in any
manner that would impose any penalty or limitation on Indemnitee
without Indemnitee’s written consent. Neither the Company nor
Indemnitee will unreasonably withhold their consent to any proposed
settlement. The Company shall not be liable to indemnify Indemnitee
under this Agreement with regard to any judicial award if the
Company was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such action.
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3.
Contribution .
(a) Whether or not the indemnification provided in
Sections 1 and 2 hereof is available, in respect
of any threatened, pending or completed Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in
such Proceeding), the Company shall pay, in the first instance, the
entire amount of any judgment or settlement of such Proceeding
without requiring Indemnitee to contribute to such payment and the
Company hereby waives and relinquishes any right of contribution it
may have against Indemnitee.
(b) Without diminishing or impairing the obligations of the
Company set forth in the preceding subparagraph, if, for any
reason, Indemnitee shall elect or be required to pay all or any
portion of any judgment or settlement in any threatened, pending or
completed Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the Company
shall contribute to the amount of expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by
Indemnitee in proportion to the relative benefits received by the
Company and all officers, directors or employees of the Company,
other than Indemnitee, who are jointly liable with Indemnitee (or
would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, from the facts, claims, acts, or
omissions from which such Proceeding arose; provided, however, that
the proportion determined on the basis of relative benefit may, to
the extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such
Proceeding), on the one hand, and Indemnitee, on the other hand, in
connection with the events that resulted in such expenses,
judgments, fines or settlement amounts, as well as any other
equitable considerations which applicable law may require to be
considered. The relative fault of the Company and all officers,
directors or employees of the Company, other than Indemnitee, who
are jointly liable with Indemnitee (or would be if joined in such
Proceeding), on the one hand, and Indemnitee, on the other hand,
shall be determined by reference to, among other things, the degree
to which their actions were motivated by intent to gain personal
profit or advantage, the degree to which their liability is primary
or secondary and the degree to which their conduct is active or
passive.
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee
harmless from any claims of contribution which may be brought by
officers, directors or employees of the Company, other than
Indemnitee, who may be jointly liable with Indemnitee in a
Proceeding in which Indemnitee is a party due to his Corporate
Status.
(d) To
the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by
Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, in
connection with any claim relating to an indemnifiable event under
this Agreement, in such proportion as is deemed fair and reasonable
in light of all of the circumstances of such Proceeding in order to
reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of
the Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or
transaction(s).
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(e) All
determinations regarding relative fault, relative benefits, and any
payments to be made under this Section 3 shall be made
in accordance with Section 6(b) of this
Agreement.
4.
Indemnification for Expenses of a Witness . Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses incurred by him or on his behalf
in connection therewith.
5.
Advancement of Expenses . Notwithstanding any other
provision of this Agreement, the Company shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with any
Proceeding by reason of Indemnitee’s Corporate Status within
thirty (30) days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final
disposition of such Proceeding. To the extent required by the
Florida Business Corporation Act (the “ FBCA ”),
Indemnitee hereby undertakes to repay the amount of Expenses paid
to Indemnitee if it is finally determined by a court of competent
jurisdiction that Indemnitee is not entitled under this Agreement
or applicable law to indemnification with respect to such Expenses.
This undertaking is an unlimited and unsecured general obligation
of Indemnitee and no interest shall be charged thereon.
6.
Procedures and Presumptions for Determination of Entitlement to
Indemnification . It is the intent of this Agreement to secure
for Indemnitee rights of indemnity to the fullest extent permitted
by law. Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any
question as to whether Indemnitee is entitled to indemnification
under this Agreement:
(a) 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, or any other executive officer of
the Company, shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the
first sentence of Section 6(a) hereof, a determination,
if required by applicable law, that Indemnitee has met the
applicable standard of conduct set forth in
Section 1(a) or Section 1(b) shall be made
in the specific case by one of the following four methods:
(i) by the Board of Directors by a majority vote of a quorum
consisting of Disinterested Directors, (ii) if such a quorum
is not obtainable or, even if obtainable, by majority vote of a
committee duly designated by the Board of Directors (in which
directors who are parties may participate) consisting solely of two
or more directors not at the time parties to the Proceeding,
(iii) for any claim which arises following a Change in Control
after the date hereof or as otherwise selected in accordance with
Section 6(c) hereof, by Independent Counsel, or
(iv) by the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such Proceeding
or, if no such quorum is obtainable, by a majority vote of
shareholders who were not parties to such Proceeding.
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(c) If
the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 6(b) hereof,
the Independent Counsel shall be selected as provided in this
Section 6(c) . The Independent Counsel shall be
selected (i) by the Board of Directors prescribed in
subsection 6(b)(i) or the committee prescribed in subsection
6(b)(ii), or (ii) if a quorum of the directors cannot be
obtained for subsection 6(b)(i) and the committee cannot be
designated under subsection 6(b)(ii), by majority vote of the full
Board of Directors (in which directors who are parties may
participate). Indemnitee may, within 10 days after such
written notice of selection shall have been given, deliver to the
Company, as the case may be, a written objection to such selection;
provided, however, that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the
requirements of “ Independent Counsel ” as
defined in Section 14 of this Agreement, and the
objection shall set forth with particularity the factual basis of
such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection
is made and substantiated, the Independent Counsel selected may not
serve as Independent Counsel unless and until such objection is
withdrawn or a court has determined that such objection is without
merit. If, within 20 days after submission by Indemnitee of a
written request for indemnification pursuant to
Section 6(a) hereof, no Independent Counsel shall have
been selected and not objected to, either the Company or Indemnitee
may petition a court of competent jurisdiction for resolution of
any objection which shall have been made by the Indemnitee to the
Company’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the
court or by such other person as the court shall designate, and the
person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under
Section 6(b) hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to
Section 6(b) hereof, and the Company shall pay all
reasonable fees and expenses incident to the procedures of this
Section 6(c) , regardless of the manner in which such
Independent Counsel was selected or appointed.
(d) In
making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making
such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence. Neither the failure of
the Company (including by its directors or Independent Counsel) to
have made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct, nor an actual determination by the Company (including by
its directors or Independent Counsel) that Indemnitee has not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
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(e) Indemnitee shall be deemed to have acted in good faith if
Indemnitee’s action is based on the records or books of
account of the Company, including financial statements, or on
information supplied to Indemnitee by the officers of the Company
in the course of their duties, or on the advice of legal counsel
for the Company or on information or records given or reports made
to the Company by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the
Company. In addition,
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