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:
(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
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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.
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2.
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Basic Indemnification Arrangement;
Advancement of Expenses .
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2.1.
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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.
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2.2.
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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.
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2.3.
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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.
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2.4.
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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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