Exhibit 10.3
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“ Agreement ”) is made as of
, 2005 by and between Novoste
Corporation, a Florida corporation (the “ Company
”), and
(the “ Indemnitee ”), a director and/or officer
of the Company.
WHEREAS, the Board of Directors of
the Company (the “ Board of Directors ”) has
determined that the Company should act to assure its directors and
officers that there will be adequate certainty of protection
through indemnification against risks of claims and actions against
them arising out of their service to and activities on behalf of
the Company;
WHEREAS, the Company has adopted
provisions in its Amended and Restated Articles of Incorporation,
as amended (the “ Articles of Incorporation ”),
and Fourth Amended and Restated By-Laws (the “ By-Laws
”) providing for indemnification of its officers and
directors, and the Company wishes to supplement the rights and
obligations of the Company and the Indemnitee with respect to
indemnification;
WHEREAS, Section 607.0850 of the
Florida Business Corporation Act, as amended (the “
FBCA ”), specifically contemplates that agreements may
be entered into between the Company and its directors and officers
with respect to indemnification of such directors and
officers;
WHEREAS, in order to induce and
encourage highly experienced and capable persons such as the
Indemnitee to serve and continue to serve as directors and officers
of the Company and in any other capacity with respect to the
Company, and to otherwise promote the desirable end that such
persons will resist what they consider unjustified lawsuits and
claims made against them in connection with the good faith
performance of their duties to the Company, with the knowledge that
certain costs, judgments, penalties, fines, liabilities and
expenses incurred by them in their defense of such litigation are
to be borne by the Company and they will receive maximum protection
against such risks and liabilities as may be afforded by law, the
Board of Directors has determined that the following Agreement is
reasonable and prudent to promote and ensure the best interests of
the Company and its shareholders; and
WHEREAS, the Company desires to have
the Indemnitee continue to serve as a director or officer of the
Company and in such other capacity with respect to the Company as
the Company may request, as the case may be, free from undue
concern for unpredictable, inappropriate or unreasonable legal
risks and personal liabilities by reason of the Indemnitee acting
in good faith in the performance of Indemnitee’s duty to the
Company; and the Indemnitee desires to continue so to serve the
Company, provided, and on the express condition, that he or she is
furnished with the indemnity set forth hereinafter;
NOW, THEREFORE, in consideration of
the mutual premises and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions . For
the purposes of this Agreement, the terms below shall have the
indicated meanings except where the context in which such term is
used in this Agreement clearly indicates otherwise:
(a) “ Change in Control
” shall be deemed to have occurred if: (i) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), becomes the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more
of the total voting power represented by the Company’s then
outstanding Voting Securities; (ii) during any period of 24
consecutive calendar months, beginning on the date of this
Agreement, those individuals (the “ Continuing
Directors ”), who (A) were directors of the Company on
the first day of any such period or (B) subsequently became
directors of the Company and whose initial election or initial
nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the Board of
Directors, cease to constitute a majority of the Board of
Directors; (iii) the shareholders of the Company approve a merger
or consolidation of the Company or any subsidiary of the Company
with any other corporation or entity, other than a merger or
consolidation that would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation; (iv) the shareholders of the Company
approve a proposal to dissolve the Company or a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of
transactions) of all or substantially all of the Company’s
assets; or (v) a liquidator, trustee or other similar person is
appointed for all, or substantially all, of the assets of the
Company.
(b) “ Disinterested
Director ” means a director of the Company who is not or
was not a party to the Proceeding in respect of which
indemnification or advancement of Expenses is sought by the
Indemnitee.
(c) “ Disinterested
Shareholder ” means a shareholder of the Company who is
not or was not a party to the Proceeding in respect of which
indemnification or advancement of Expenses is sought by the
Indemnitee.
(d) “ Expenses”
means any and all costs and expenses (other than Liabilities),
including but not limited to attorney’s fees, witness fees
and expenses, fees and expenses of accountants and other advisors,
retainers and disbursements and advances thereon, the premium,
security for, and other costs relating to any bond (including cost
bonds, appraisal bonds or their equivalents), actually and
reasonably paid or incurred by the Indemnitee on account of or in
connection with any Proceeding.
(e) “ Independent
Counsel ” means a law firm or a member of a law firm that
is experienced in matters of corporation and securities law and
neither presently is, nor in the past five (5) years has been,
retained to represent (i) the Company or the Indemnitee in any
matter material to either such party (other than with respect to
matters concerning (A) the
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Indemnitee under this Agreement or (B) other
individuals who are “indemnitees” under similar
indemnification agreements with the Company) or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
under this Agreement. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then
prevailing under the laws of the State of Florida or any other
applicable law, would have a conflict of interest in representing
either the Company or the Indemnitee in an action to determine the
Indemnitee’s rights under this Agreement. The Company agrees
to pay the reasonable fees of the Independent Counsel referred to
above and to fully indemnify such counsel against any and all
expenses, claims, liabilities and damages arising or relating to
this Agreement or its engagement pursuant hereto.
(f) “
Liabilities” means any and all liabilities of every
type whatsoever (other than Expenses), including but not limited
to, judgments, assessments, fines, penalties, excise or other taxes
(including any excise tax assessed with respect to any employee
benefit plan) and amounts paid in settlement, and including
interest on any of the foregoing, actually and reasonably paid,
incurred or suffered by the Indemnitee on account of or in
connection with any Proceeding.
(g) “ Losses ”
mean Expenses and Liabilities.
(h) “ Proceeding
” means any threatened, pending or completed investigation,
claim, action, suit, appeal, arbitration, alternate dispute
resolution mechanism, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether civil,
criminal, administrative or investigative (including without
limitation, any action, suit or proceeding by or in the right of
the Company to procure a judgment in its favor) and whether formal
or informal.
(i) “ Voting Securities
” means any securities of the Company that vote generally in
the election of directors.
SECTION 2. Right to
Indemnification . The Company shall indemnify to the fullest
extent permitted by applicable law in effect on the date hereof or
as such law may from time to time be amended (but, in the case of
any such amendment, only to the extent that such amendment permits
the Company to provide broader indemnification rights than said law
permitted the Company to provide prior to such amendment). Without
in any manner limiting the generality of the immediately preceding
sentence, but subject to and upon the terms and conditions of this
Agreement, the Company shall indemnify and hold harmless the
Indemnitee in the event that he or she was or is a party to or is
involved or becomes involved in any manner (including, without
limitation, as a party, intervenor or a witness) or is threatened
to be made so involved in any Proceeding by reason of the fact that
he or she, or a person of whom he or she is the legal
representative, is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as
a director, officer, employee or agent or fiduciary of any other
entity (including but not limited to, another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise or entity), against all Losses, actually and reasonably
incurred by him or her in connection with such Proceeding. Such
indemnification
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shall be a contract right and shall include the
right to receive payment in advance of any Expenses reasonably
incurred by the Indemnitee in connection with such Proceeding,
consistent with the provisions of applicable law as then in
effect.
SECTION 3. Indemnification for
Expenses of Successful Party . Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has
been successful, on the merits or otherwise, in whole or in part,
in defense of any Proceeding or in defense of any claim, issue or
matter therein, including, without limitation, the dismissal of any
action without prejudice, or if it is ultimately determined that
the Indemnitee is otherwise entitled to be indemnified against
Expenses, the Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred in connection
therewith.
SECTION 4. Partial
Indemnification . If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of the Losses actually and reasonably incurred by
the Indemnitee in a Proceeding, but not, however, for the total
amount thereof, the Company shall indemnify the Indemnitee for the
portion of such Losses to which the Indemnitee is
entitled.
SECTION 5. Indemnification; Not
Exclusive Right . The right of indemnification provided in this
Agreement shall not be exclusive of and shall be in addition to,
and not in lieu of, any other rights to which the Indemnitee may
otherwise be entitled under applicable law, the Articles of
Incorporation, the By-Laws or otherwise. Nothing in this Agreement
shall diminish or otherwise restrict the Indemnitee’s right
to indemnification under applicable law, the Articles of
Incorporation, By-Laws or otherwise.
SECTION 6. Limitation on
Indemnification . Notwithstanding Section 2 of this Agreement,
no indemnification or advancement of Expenses shall be made under
this Agreement to or on behalf of the Indemnitee to the extent
that:
(a) a judgment or other final
adjudication establishes that his or her actions, or omissions to
act, were material to the cause of action so adjudicated and
constitute:
(i) a violation of the criminal law,
unless the Indemnitee had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful;
(ii) a transaction from which the
Indemnitee derived an improper personal benefit;
(iii) if the Indemnitee is a
director, a circumstance under which the liability provisions of
Section 607.0834 of the FBCA are applicable to the Indemnitee;
or
(iv) willful misconduct or a
conscious disregard for the best interests of the Company in a
proceeding by or in the right of the Company to procure a judgment
in its favor or in a proceeding by or in the right of a
shareholder; or
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(b) a final decision by a court
having jurisdiction in the matter shall determine that such
indemnification or advancement of Expenses is not
lawful.
SECTION 7. Procedures for
Advancement of Expenses and Indemnification; Presumptions and
Effect of Certain Proceedings; Remedies . In furtherance, but
not in limitation of the foregoing provisions, the following
procedures, presumptions and remedies shall apply with respect to
the advancement of Expenses and the right to indemnification under
this Agreement:
(a) Advancement of Expenses .
All Expenses reasonably incurred by or on behalf of the Indemnitee
in the defense of or other involvement in or otherwise in
connection with any Proceeding shall be advanced to the Indemnitee
by the Company within twenty (20) days after the receipt by the
Company of a statement or statements from the Indemnitee requesting
such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by the
Indemnitee and shall include or be accompanied by an undertaking by
or on behalf of the Indemnitee to repay the amounts advanced if it
should ultimately be determined that the Indemnit
