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INDEMNIFICATION AGREEMENT

Indemnification Agreement

INDEMNIFICATION AGREEMENT | Document Parties: WRIGHT MEDICAL GROUP INC You are currently viewing:
This Indemnification Agreement involves

WRIGHT MEDICAL GROUP INC

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Title: INDEMNIFICATION AGREEMENT
Governing Law: Delaware     Date: 4/7/2009
Industry: Medical Equipment and Supplies     Sector: Healthcare

INDEMNIFICATION AGREEMENT, Parties: wright medical group inc
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Exhibit 10.1

INDEMNIFICATION AGREEMENT

     This Indemnification Agreement (the “ Agreement ”) made and entered into as of the Effective Date (defined below) by and between Wright Medical Group, Inc., a Delaware corporation (the “ Company ”), and [Name] (the “ Indemnitee ”).

     WHEREAS, it is essential to the Company and its Affiliates (defined below) to retain and attract the most capable persons available as directors and officers;

     WHEREAS, directors and officers of public companies are subject to an increased risk of litigation and claims being asserted against them;

     WHEREAS, the Company’s Fourth Amended and Restated Certificate of Incorporation, as amended by Certificate of Amendment of Fourth Amended and Restated Certificate of Incorporation (the “ Certificate of Incorporation ”) and Second Amended and Restated By-laws (the “ By-laws ”) of the Company require the Company to indemnify its directors and officers and those serving its Affiliates at its request to the fullest extent permitted by Delaware law, and the Indemnitee has been serving and continues to serve as a director or officer of the Company or an Affiliate of the Company in part in reliance on such Certificate of Incorporation and By-laws;

     WHEREAS, Indemnitee is or has agreed to become or will continue to serve as a director or officer of the Company or an Affiliate of the Company;

     WHEREAS, the Company desires (i) to provide Indemnitee with specific contractual assurance that the protection promised by such Certificate of Incorporation and By-laws will be available to Indemnitee (regardless of, among other things, any amendment to or revocation of such Certificate of Incorporation or By-laws, change in the composition of the Company’s Board of Directors (“ Board of Directors ”), or any change in the ownership of the Company), (ii) to provide for the indemnification of and the advancing of expenses to Indemnitee to the fullest extent (whether partial or complete) permitted by law and as set forth in this Agreement, and (iii) to the extent insurance is available, to provide for continued coverage of Indemnitee under the Company’s directors and officers liability insurance policies; and

     WHEREAS, Indemnitee is relying upon the rights afforded under this Agreement in accepting or continuing Indemnitee’s position as a director or officer of the Company or an Affiliate of the Company.

     NOW, THEREFORE, in consideration of the Indemnitee’s agreement to serve or continue to serve as a director and/or officer of the Company or an Affiliate of the Company and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company has agreed to the covenants set forth herein for the purpose of further securing to the Indemnitee the indemnification provided by the Certificate of Incorporation and the By-laws:

1.

 

Definitions .

(a) “ Affiliate ” has the meaning set forth in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder.

(b) “ Agreement ” shall have the meaning specified in the introductory paragraph hereof.

(c) “ By-laws ” shall have the meaning specified in the Recitals hereto.

(d) “ Certificate of Incorporation ” shall have the meaning specified in the Recitals hereto.

(e) “ 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), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a

 


 

corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said 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, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which 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, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company’s assets.

(f) “ Claim ” means any threatened, pending, or completed action, suit, or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit, or proceeding, whether civil, criminal, administrative, investigative, or other and whether formal or informal.

(g) “ Company ” shall have the meaning specified in the introductory paragraph hereof.

(h) “ Expense Advance ” shall have the meaning specified in Section 2.2 .

(i) “ Expenses ” include attorneys’ fees and all other costs, expenses and obligations (including, without limitation, experts’ fees, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in, or preparing to investigate, defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.

(j) “ Indemnifiable Amounts ” include any and all Expenses, damages, judgments, fines, penalties, excise taxes and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes or amounts paid in settlement) arising out of or resulting from any Claim relating to an Indemnifiable Event.

(k) “ Indemnifiable Event ” means any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, or agent of the Company or an Affiliate of the Company, or is or was serving at the request of the Company as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, whether for profit or not, or by reason of anything done or not done by Indemnitee in any such capacity.

(l) “ Indemnitee ” shall have the meaning specified in the introductory paragraph hereof.

(m) “ Independent Legal Counsel ” means an attorney or firm of attorneys, selected in accordance with the provisions of Section 3 , who shall not have otherwise performed services for

2


 

the Company or Indemnitee within the last five (5) years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnities under similar indemnity agreements).

(n) “ Reviewing Party ” means any appropriate person or body consisting of a member or members of the Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.

(o) “ Voting Securities ” are any securities of the Company that vote generally in the election of directors.

2.

 

Basic Indemnification Arrangement; Advancement of Expenses .

 

2.1.

 

In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable, but in any event no later than thirty days after written demand is presented to the Company, against any and all Indemnifiable Amounts. For the avoidance of doubt, the foregoing indemnification obligation includes, without limitation, claims for monetary damages against Indemnitee in respect of an alleged breach of fiduciary duties, to the fullest extent permitted under Section 102(b)(7) of the Delaware General Corporation Laws.

 

 

2.2.

 

If requested by Indemnitee, the Company shall advance (within five (5) business days of such request) any and all Expenses incurred by Indemnitee (an “ Expense Advance ”). The Company shall, in accordance with such request (but without duplication), either (i) pay such Expenses on behalf of Indemnitee, or (ii) reimburse Indemnitee for such Expenses. Subject to the limitations contained in Sections 2.3 and 2.4 , Indemnitee’s right to an Expense Advance is absolute and shall not be subject to any prior determination by the Reviewing Party or any other person, that the Indemnitee has satisfied any applicable standard of conduct for indemnification. In making any request for an Expense Advance, Indemnitee shall submit to the Company a schedule setting forth in reasonable detail the dollar amount expended or incurred and expected to be expended or incurred. Each such listing shall be supported by the bill, agreement, or other documentation relating thereto, each of which shall be appended to the schedule as an exhibit.

 

 

2.3.

 

Notwithstanding anything in this Agreement to the contrary, Indemnitee shall not be entitled to indemnification or an Expense Advance pursuant to this Agreement in connection with any Claim initiated by Indemnitee unless (i) the Company has joined in or the Board of Directors has authorized or consented to the initiation of such Claim or (ii) the Claim is one to enforce Indemnitee’s rights under this Agreement.

 

 

2.4.

 

Notwithstanding anything in this Agreement to the contrary, (i) the indemnification obligations of the Company under Section 2.1 shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2.2 shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid (it being understood and agreed that the foregoing agreement by Indemnitee shall be deemed to satisfy any requirement that Indemnitee provide the Company with an undertaking to repay any Expense Advance if it is ultimately determined that t


 
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