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Exhibit 10.4 INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this
"Agreement"), made and executed effective as of the 19th day of
January, 2009, by and between ev3 Inc., a Delaware corporation (the
"Company"), and Shawn McCormick, an individual resident of the
State of Minnesota (the "Indemnitee").
WHEREAS, the Company is aware that,
in order to induce highly competent persons to serve the Company as
directors or officers or in other capacities, the Company must
provide such persons with adequate protection through insurance and
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the Company; WHEREAS, the
Company recognizes that the increasing difficulty in obtaining
directors’ and officers’ liability insurance, the
increases in the cost of such insurance and the general reductions
in the coverage of such insurance have increased the difficulty of
attracting and retaining such persons;
WHEREAS, the Board of Directors of
the Company has determined that it is essential to the best
interests of the Company’s stockholders that the Company act
to assure such persons that there will be increased certainty of
such protection in the future;
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 continue to serve the Company free
from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to
serve, continue to serve, and take on additional service for or on
behalf of the Company or any of its direct or indirect subsidiaries
on the condition that he/she be so indemnified.
NOW, THEREFORE, in consideration of
the premises and the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and
the Indemnitee do hereby agree as follows:
1. Service by the
Indemnitee . The Indemnitee agrees to serve and/or continue to
serve as a director, officer, employee or other agent of the
Company faithfully and will discharge his/her duties and
responsibilities to the best of his/her ability so long as the
Indemnitee is duly elected or qualified in accordance with the
provisions of the Amended and Restated Certificate of
Incorporation, as amended (the "Certificate"), and Amended and
Restated By-laws, as amended (the "By-laws") of the Company and the
General Corporation Law of the State of Delaware, as amended (the
"DGCL"), or until his/her earlier death, resignation or removal.
The Indemnitee may at any time and for any reason resign from such
position (subject to any other
contractual obligation or other obligation imposed by operation
by law), in which event the Company shall have no obligation under
this Agreement to continue the Indemnitee in any such position.
Nothing in this Agreement shall confer upon the Indemnitee the
right to continue in the employ of the Company or as a director of
the Company or affect the right of the Company to terminate the
Indemnitee’s employment at any time in the sole discretion of
the Company, with or without cause, subject to any contract rights
of the Indemnitee created or existing otherwise than under this
Agreement. 2.
Indemnification . The Company shall indemnify the Indemnitee
against all Expenses (as defined below), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
Indemnitee as provided in this Agreement to the fullest extent
permitted by the Certificate, By-laws and DGCL or other applicable
law in effect on the date of this Agreement and to any greater
extent that applicable law may in the future from time to time
permit. Without diminishing the scope of the indemnification
provided by this Section 2, the rights of indemnification of
the Indemnitee provided hereunder shall include, but shall not be
limited to, those rights hereinafter set forth, except that no
indemnification shall be paid to the Indemnitee:
(a) on account of any action, suit or
proceeding in which judgment is rendered against the Indemnitee for
disgorgement of profits made from the purchase or sale by the
Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934, as amended
(the "Act"), or similar provisions of any federal, state or local
statutory law; (b) on account of
conduct of the Indemnitee which is finally adjudged by a court of
competent jurisdiction to have been knowingly fraudulent or to
constitute willful misconduct; (c) in
any circumstance where such indemnification is expressly prohibited
by applicable law; (d) with respect
to liability for which payment is actually made to the Indemnitee
under a valid and collectible insurance policy of the Company or
under a valid and enforceable indemnity clause, By-law or agreement
(other than this Agreement) of the Company, except in respect of
any liability in excess of payment under such insurance, clause,
By-law or agreement; (e) if a final
decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful (and, in this
respect, both the Company and the Indemnitee have been advised that
it is the position of the Securities and Exchange Commission that
indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore,
unenforceable, and that claims for indemnification should be
submitted to the appropriate court for adjudication); or
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(f) in connection with any action,
suit or proceeding by the Indemnitee against the Company or any of
its direct or indirect subsidiaries or the directors, officers,
employees or other Indemnitees of the Company or any of its direct
or indirect subsidiaries, (i) unless such indemnification is
expressly required to be made by law, (ii) unless the
proceeding was authorized by the Board of Directors of the Company,
(iii) unless such indemnification is provided by the Company,
in its sole discretion, pursuant to the powers vested in the
Company under applicable law, or (iv) except as provided in
Sections 11 and 13 hereof.
3. Actions or Proceedings
Other Than an Action by or in the Right of the Company . The
Indemnitee shall be entitled to the indemnification rights provided
in this Section 3 if the Indemnitee was or is a party or
witness or is threatened to be a party or witness to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature,
other than an action by or in the right of the Company, by reason
of the fact that the Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company, or any of its direct
or indirect subsidiaries, or is or was serving at the request of
the Company, or any of its direct or indirect subsidiaries, as a
director, officer, employee, agent or fiduciary of any other
entity, including, but not limited to, another corporation,
partnership, limited liability company, employee benefit plan,
joint venture, trust or other enterprise, or by reason of any act
or omission by him/her in such capacity. Pursuant to this
Section 3, the Indemnitee shall be indemnified against all
Expenses, judgments, penalties (including excise and similar
taxes), fines and amounts paid in settlement which were actually
and reasonably incurred by the Indemnitee in connection with such
action, suit or proceeding (including, but not limited to, the
investigation, defense or 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, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his/her conduct was unlawful.
4. Actions by or in the
Right of the Company . The Indemnitee shall be entitled to the
indemnification rights provided in this Section 4 if the
Indemnitee was or is a party or witness or is threatened to be made
a party or witness to any threatened, pending or completed action,
suit or proceeding brought by or in the right of the Company to
procure a judgment in its favor by reason of the fact that the
Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any of its direct or indirect
subsidiaries, or is or was serving at the request of the Company,
or any of its direct or indirect subsidiaries, as a director,
officer, employee, agent or fiduciary of another entity, including,
but not limited to, another corporation, partnership, limited
liability company, employee benefit plan, joint venture, trust or
other enterprise, or by reason of any act or omission by him/her in
any such capacity. Pursuant to this Section 4, the Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by him/her in connection with the defense or settlement of
such action, suit or proceeding (including, but not limited to the
investigation, defense or 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, that no such indemnification shall be made in respect of
any claim, issue, or matter as to which the Indemnitee shall have
been adjudged to be liable to the Company, unless and only to the
extent that the Court of Chancery of the State of Delaware or the
court in which such action, suit or proceeding was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to be indemnified
against such Expenses actually and reasonably incurred by him/her
which such court shall deem proper.
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5. Good Faith
Definition . For purposes of this Agreement, the Indemnitee
shall be deemed to have 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, or, with respect to any criminal action
or proceeding to have had no reasonable cause to believe the
Indemnitee’s conduct was unlawful, if such action was based
on (i) the records or books of the account of the Company or
other enterprise, including financial statements;
(ii) information supplied to the Indemnitee by the officers of
the Company or other enterprise in the course of their duties;
(iii) the advice of legal counsel for the Company or other
enterprise; or (iv) information or records given in reports
made to the Company or other enterprise by an independent certified
public accountant or by an appraiser or other expert selected with
reasonable care by the Company or other enterprise.
6. Indemnification for
Expenses of Successful Party . Notwithstanding the other
provisions of this Agreement, to the extent that the Indemnitee has
served on behalf of the Company, or any of its direct or indirect
subsidiaries, as a witness or other participant in any class action
or proceeding, or has been successful, on the merits or otherwise,
in defense of any action, suit or proceeding referred to in
Section 3 and 4 hereof, or in defense of any claim, issue or
matter therein, including, but not limited to, the dismissal of any
action without prejudice, the Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by the
Indemnitee in connection therewith, regardless of whether or not
the Indemnitee has met the applicable standards of Section 3
or 4 and without any determination pursuant to Section 8.
7. 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 Expenses, judgments, fines and amounts
paid in settlement actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense, appeal or
settlement of such suit, action, investigation or proceeding
described in Section 3 or 4 hereof, but is not entitled to
indemnification for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by the Indemnitee to
which the Indemnitee is entitled.
8. Procedure for
Determination of Entitlement to Indemnification . (a) To
obtain indemnification under this Agreement, the Indemnitee shall
submit to the Company a written request, including documentation
and information which is reasonably available to the Indemnitee and
is reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification. The Secretary of the
Company shall, promptly upon receipt of a request for
indemnification, advise the Board of Directors in writing that the
Indemnitee has requested indemnification. Any Expenses incurred by
the Indemnitee in connection with the Indemnitee’s request
for indemnification hereunder shall be borne by the Company. The
Company hereby indemnifies and agrees to hold the Indemnitee
harmless for any Expenses incurred by the Indemnitee under the
immediately preceding sentence irrespective of the outcome of the
determination of the Indemnitee’s entitlement to
indemnification.
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(b) Upon written request by
the Indemnitee for indemnification pursuant to Section 3 or 4
hereof, the entitlement of the Indemnitee to indemnification
pursuant to the terms of this Agreement shall be determined by the
following person or persons, who shall be empowered to make such
determination: (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as
hereinafter defined) (unless the Indemnitee shall request in
writing that such determination be made by the Board of Directors
(or a committee thereof) in the manner provided for in clause
(ii) of this Section 8(b)) in a written opinion to the
Board of Directors, a copy of which shall be delivered to the
Indemnitee; or (ii) if a Change in Control shall not have
occurred, (A)(1) by the Board of Directors of the Company, by a
majority vote of Disinterested Directors (as hereinafter defined)
even though less than a quorum, or (2) by a committee of
Disinterested Directors designated by majority vote of
Disinterested Directors, even though less than a quorum, or
(B) if there are no such Disinterested Directors or, even if
there are such Disinterested Directors, if the Board of Directors,
by the majority vote of Disinterested Directors, so directs, by
Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to the Indemnitee. Such
Independent Counsel shall be selected by the Board of Directors and
approved by the Indemnitee. Upon failure of the Board of Directors
to so select, or upon failure of the Indemnitee to so approve, such
Independent Counsel shall be selected by the Chancellor of the
State of Delaware or such other person as the Chancellor shall
designate to make such selection. Such determination of entitlement
to indemnification shall be made not later than 45 days after
receipt by the Company of a written request for indemnification. If
the person making such determination shall determine that the
Indemnitee is entitled to indemnification as to part (but not all)
of the application for indemnification, such person shall
reasonably prorate such part of indemnification among such claims,
issues or matters. If it is so determined that the Indemnitee is
entitled to indemnification, payment to the Indemnitee shall be
made within ten days after such determination.
9. Presumptions and Effect
of Certain Proceedings . (a) In making a determination
with respect to e
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