INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”), made and
executed effective as of the
day of
,
, by and between ev3 Inc., a Delaware corporation (the
“Company”), and
, an individual resident of the State of
(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
(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
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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
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entitled to be
indemnified against such Expenses actually and reasonably incurred
by him/her which such court shall deem proper.
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 entitlement to
indemnification, the Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Company shall have the burden of
proof in the making of any determination contrary to such
presumption.
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