Exhibit 10.33
INDEMNIFICATION
AGREEMENT
This Agreement is made and entered
into as of
,
(the “Agreement”), by and between World Heart
Corporation, a corporation continued under the laws of Canada (the
“Company”, which term shall include any one or more of
its subsidiaries where appropriate), and
(“Indemnitee”). Certain capitalized terms are
used in this Agreement as specifically defined in
Section 7.
WHEREAS , the Company and Indemnitee recognize the
substantial increase in corporate litigation in general, subjecting
directors and executive officers to expensive litigation
risks;
WHEREAS , the Company desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to
serve as directors and executive officers of the Company and to
indemnify its directors and executive officers so as to provide
them with the maximum protection permitted under applicable law and
the Company’s Articles of Continuance and By-Laws, each as
amended; and
WHEREAS , in view of such considerations, the Company
desires to provide, independent from the indemnification to which
Indemnitee is otherwise entitled by law and under the
Company’s Articles of Continuance and By-Laws, each as
amended, indemnification to Indemnitee and advances of expenses,
all as set forth in this Agreement.
NOW , THEREFORE , to induce Indemnitee to
serve the Company and in consideration of these premises and the
mutual agreements set forth in this Agreement, as well as other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and Indemnitee hereby
agree as follows:
1.
Services by Indemnitee
. Indemnitee agrees to serve
or continue to serve as a director or executive officer of the
Company for so long as Indemnitee is duly elected or appointed or
until Indemnitee’s written resignation; provided, however,
that nothing contained in this Agreement is intended as an
employment agreement between Indemnitee and the Company or any of
subsidiaries or to create any right to continued employment of
Indemnitee with the Company or any of its subsidiaries in any
capacity.
2.
Indemnification and
Advances .
2.1
The Company shall advance all
Expenses actually and reasonably incurred by or on behalf of
Indemnitee in connection with any Proceeding within fifteen
business days after the receipt by the Company of a written request
therefor, accompanied or preceded by reasonably detailed evidence
of such Expenses. Such written request shall include an
undertaking, substantially in the form attached hereto as
Exhibit A , by or on behalf of Indemnitee to repay all
Expenses advanced to the extent Indemnitee shall be finally
adjudicated, or determined pursuant to Section 3.1, 3.2 or
3.3, to be not entitled to indemnification therefor. The
undertaking as described above shall be unsecured, bear no interest
and be accepted by the Company without reference to
Indemnitee’s financial ability to repay any such
advances. Advances shall include any and all Expenses
actually and reasonably incurred by Indemnitee pursuing an action
to enforce Indemnitee’s
right to indemnification under this Agreement,
or otherwise, including Expenses incurred preparing and forwarding
statements to the Company to support the advances claimed.
Repayment shall not be required until after it is ultimately
determined by a court of competent jurisdiction in a final
judgment, not subject to appeal, that Indemnitee is not entitled to
be indemnified by the Company.
2.2
Except as specifically provided in
Sections 3.1, 3.2 and 3.3, within 60 calendar days after receipt of
a request for indemnification from Indemnitee the Company shall
indemnify Indemnitee to the fullest extent permitted by law against
all Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with any Proceeding or any
claim, issue or matter therein. A request for indemnification
must be accompanied by reasonable evidence of the basis of the
amount for which indemnification is requested, and must indicate a
choice of Independent Counsel, if any, to make any determination
pursuant to Section 3.3.
2.3
Notwithstanding any other provision
of this Agreement, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by Indemnitee in
connection with any Proceeding (or any claim, issue or matter
relating thereto) which was adjudicated or determined by a court of
competent jurisdiction, on the merits or otherwise, in
Indemnitee’s favor or which was terminated by dismissal or
withdrawal, with or without prejudice. Without limiting the
generality of the foregoing, if any Proceeding is disposed of, on
the merits, by settlement (with or without court approval) or
otherwise (including a disposition without prejudice), without
(i) the disposition being adverse to Indemnitee, (ii) an
adjudication that Indemnitee was liable to the Company,
(iii) a plea of guilty by Indemnitee, (iv) an
adjudication that Indemnitee did not act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, or (v) with respect to any
criminal action or proceeding, an adjudication that Indemnitee had
reasonable cause to believe Indemnitee’s conduct was
unlawful, then the Proceeding shall be considered for the purpose
of this Agreement to have been resolved in Indemnitee’s
favor. For purposes of this Agreement, the termination of any
Proceeding by settlement or upon a plea of nolo
contendere , or its equivalent, shall not, of itself, create
a presumption that Indemnitee did not meet any particular standard
of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable
law.
2.4
If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of the Expenses, judgments, penalties, fines or
amounts paid in settlement actually and reasonably incurred by him
or on his behalf in connection with any Proceeding or any claim,
issue or matter therein, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for
the portion of such Expenses, judgments, penalties, fines or
amounts paid in settlement to which the Company reasonably believes
the Indemnitee is entitled.
2.5
Indemnitee must notify the Company
in writing as soon as practicable of any Proceeding for which
indemnity will or could be sought by him and provide the Company
with a copy of any summons, citation, subpoena, information or
other document relating to such Proceeding with which Indemnitee is
served. In the event the Company shall be obligated to pay Expenses
of Indemnitee in connection with any Proceeding, the Company shall
have the right in its sole discretion to assume the defense of such
Proceeding, or to participate to the extent permissible
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in such Proceeding, with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld or
delayed, upon the delivery to Indemnitee of written notice of its
election to do so. Notwithstanding the foregoing, the Company
shall not be permitted to settle any Proceeding on behalf of
Indemnitee in any manner which would impose any unindemnified
liability or penalty on Indemnitee or require any acknowledgment of
wrongdoing on the part of Indemnitee without Indemnitee’s
written consent. The Company shall not be required to indemnify
Indemnitee for any amounts paid in settlement of any Proceeding
effected without its written consent (which consent shall not be
unreasonably withheld or delayed; provided, however, that the
Company may in any event decline to consent to (or to otherwise
admit or agree to any liability for indemnification hereunder in
respect of) any proposed settlement if the Company is also a party
in such proceeding and determines in good faith that such
settlement is not in the best interests of the Company and its
shareholders.). After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this
Agreement for any other fees of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding, provided that
(i) Indemnitee shall have the right to employ his own counsel
in any such Proceeding at Indemnitee’s own expense; and
(ii) if (A) the employment of separate counsel by
Indemnitee has been previously authorized in writing by the
Company, or (B) Indemnitee shall have reasonably concluded
based on the advice of legal counsel that there is an actual
conflict of interest between the Company and Indemnitee in the
conduct of any such defense, or (C) the Company shall not, in
fact, have employed counsel to assume the defense of such
Proceeding, then the fees of Indemnitee’s counsel shall be at
the expense of the Company. The Company shall not be
entitled, without the consent of Indemnitee (which consent shall
not be unreasonably withheld or delayed), to assume the defense of
any claim brought by or in the right of the Company or as to which
counsel for Indemnitee shall have reasonably made the conclusion
provided for in clause (ii)(B) above.
2.6
Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding
or in defense of any claim, issue or matter therein, including the
dismissal of any action without prejudice, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably
incurred in connection with the investigation, defense or appeal of
such Proceeding.
3.
Exceptions
.
3.1
No indemnification shall be provided
with respect to the following: (a) remuneration paid to
Indemnitee if it is determined by final judgment or other final
adjudication that such remuneration was in violation of law;
(b) any Proceeding to the extent that Indemnitee has been
finally adjudicated (i) not to have acted honestly or in good
faith and in the reasonable belief that Indemnitee’s action
or inaction was in the best interests of the Company (or, in the
case of service with respect to an employee benefit plan, in the
best interests of the participants or beneficiaries of such
employee benefit plan) or (ii) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary
penalty, not to have had reasonable grounds for believing that the
Indemnitee’s conduct was lawful; (c) any of
Indemnitee’s Expenses or liabilities to the extent that such
Expenses or liabilities have been actually paid by an insurance
carrier under a policy of insurance; (d) the payment of
profits inuring to and recoverable by the Company pursuant to
Section 16(b) of the Securities and Exchange Act of 1934,
as amended, or any similar successor statute or other provisions of
any Canadian or U.S. federal, state or local statute or
rules and regulations
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thereunder, and any Expenses incurred with
respect thereto; (e) any Proceeding initiated or brought
voluntarily by Indemnitee and not by way of defense, counterclaim
or crossclaim, except (i) with respect to a Proceeding brought
to establish or enforce a right to indemnification under this
Agreement (unless otherwise prohibited by this Agreement) or under
any other agreement or applicable law, or (ii) in specific
cases where the Board of Directors has approved the initiation or
bringing of such Proceeding; (f) any Proceeding in which
Indemnitee has been finally adjudicated to have committed fraud; or
(g) any Proceeding in which it has been finally adjudicated
that Indemnitee may not be relieved of liability under applicable
law or public policy for Indemnitee’s acts, errors, omissions
or transactions.
3.2
If a Change of Control has not
occurred since the date hereof, no indemnification shall be
provided under this Agreement to the extent that, within 60
calendar days of the receipt by the Company of a request for
indemnification, Indemnitee has been determined (after
investigation) by:
(a) the Board of Directors of
the Company by majority vote of a quorum of Disinterested
Directors; or
(b) if such a quorum is not
obtainable, or if directed by majority vote of a quorum of
Disinterested Directors, Independent Counsel (selected by majority
vote of the Disinterested Directors or, if none, by majority vote
of the Board of Directors) in a written opinion,
not to be entitled to such indemnification
pursuant to any of the exceptions set forth in Section 3.1
above.
3.3
If a Change in Control has occurred
since the date hereof, no indemnification shall be provided under
this Agreement to the extent that, within 60 calendar days of the
receipt by the Company of a request for indemnification, Indemnitee
has been determined (after investigation) by:
(a) the Independent Counsel
specified by Indemnitee in the request for indemnification and
approved by the Company (such approval not to be unreasonably
withheld); or
(b) if the Indemnitee makes no
such specification, by a person, persons or entity who would be
entitled to make such a determination pursuant to Section 3.2
if a Change in Control had not occurred,
not to be entitled to such indemnification
pursuant to any of the exceptions set forth in Section 3.1
above. A person, persons or entity making a determination
pursuant to this Section 3.3 shall presume that Indemnitee
acted so as to be entitled to indemnification, and the Company
shall have the burden of proof in overcoming that
presumption.
3.4
Indemnitee shall cooperate with any
person, persons or entity making an investigation pursuant to
Sections 3.2 or 3.3 to the extent reasonably requested. Any
costs or expenses (including attorney’s fees and
disbursements) incurred by Indemnitee in so cooperating shall be
borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to
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indemnification), and the Company hereby agrees
to indemnify and agrees to hold Indemnitee harmless
therefrom.
3.5
For purposes of any determination of
good faith, Indemnitee shall be deemed to have acted in good faith
i
