Exhibit 10.1
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“Agreement”) is made as of March 1, 2009 by and
between ResMed Inc., a Delaware corporation (the
“Company”), and
(“Indemnitee”). This Agreement supersedes and replaces
any and all previous Agreements between the Company and Indemnitee
covering the subject matter of this Agreement.
RECITALS
WHEREAS, highly competent persons
have become more reluctant to serve publicly-held corporations as
directors, officers or in other capacities unless they are provided
with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the corporation;
WHEREAS, the Board of Directors of
the Company (the “Board”) has determined that, in order
to attract and retain qualified individuals, the Company will
attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the furnishing of
such insurance has been a customary and widespread practice among
United States-based corporations and other business enterprises,
the Company believes that, given current market conditions and
trends, such insurance may be available to it in the future only at
higher premiums and with more exclusions. At the same time,
directors, officers, and other persons in service to corporations
or business enterprises are being increasingly subjected to
expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only
against the Company or business enterprise itself. The By-laws of
the Company require indemnification of the officers and directors
of the Company. Indemnitee may also be entitled to indemnification
pursuant to the General Corporation Law of the State of Delaware
(the “DGCL”). The By-laws and the DGCL expressly
provide that the indemnification provisions set forth therein are
not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the board of
directors, officers and other persons with respect to
indemnification;
WHEREAS, the uncertainties relating
to such insurance and to indemnification have increased the
difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined
that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company and its
stockholders and that the Company should 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, and to advance expenses on behalf of, such persons to
the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that
they will not be so indemnified;
WHEREAS, this Agreement is a
supplement to and in furtherance of the By-laws of the Company and
any resolutions adopted pursuant thereto, and will not be deemed a
substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder;
WHEREAS, Indemnitee does not regard
the protection available under the Company’s By-laws and
insurance as adequate in the present circumstances, and may not be
willing to serve as an officer or director without adequate
protection, and the Company desires Indemnitee to serve in such
capacity. Indemnitee is willing to serve, continue to serve and to
take on additional service for or on behalf of the Company on the
condition that he be so indemnified; and
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the
Company. Indemnitee agrees to serve as a director, officer,
employee, or agent of the Company, or, at the request of the
Company, as a director, officer, employee, agent, or fiduciary of
another corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise. Indemnitee may at any time and
for any reason resign from such position (subject to any other
contractual obligation or any obligation imposed by operation of
law), in which event the Company will have no obligation under this
Agreement to continue Indemnitee in such position. This Agreement
will not be deemed an employment contract between the Company (or
any of its subsidiaries or any Enterprise) and Indemnitee.
Indemnitee specifically acknowledges that Indemnitee’s
employment with the Company (or any of its subsidiaries or any
Enterprise), if any, is at will, and the Indemnitee may be
discharged at any time for any reason, with or without cause,
except as may be otherwise provided in any written employment
contract between Indemnitee and the Company (or any of its
subsidiaries or any Enterprise), other applicable formal severance
policies duly adopted by the Board, or, with respect to service as
a director or officer of the Company, by the Company’s
Certificate of Incorporation, the Company’s By-laws, and the
DGCL. The foregoing notwithstanding, this Agreement will continue
in force after Indemnitee has ceased to serve as an officer,
director, agent, or employee of the Company.
Section 2. Definitions.
As used in this Agreement:
(a) References to
“agent” will mean any person who is or was a director,
officer, or employee of the Company or a Subsidiary of the Company
or other person authorized by the Company to act for the Company,
to include such person serving in such capacity as a director,
officer, employee, fiduciary or other official of another
corporation, partnership, limited liability company, joint venture,
trust or other Enterprise at the request of, for the convenience
of, or to represent the interests of the Company or a Subsidiary of
the Company.
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(b) A “Change in
Control” will be deemed to occur upon the earliest to occur
after the date of this Agreement of any of the following
events:
i. a transaction or series of
transactions whereby any “person” or related
“group” of “persons” (as such terms are
used in Sections 13(d) and 14(d)(2) of the Exchange Act) directly
or indirectly acquires beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of securities of the Company
possessing more than 50% of the total combined voting power of the
Company’s securities outstanding immediately after such
acquisition, other than:
ii. an acquisition by an employee
benefit plan or any trustee holding securities under any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company; or
iii. an acquisition by the Company
or a “person” that, prior to such transaction, directly
or indirectly controls, is controlled by, or is under common
control with, the Company; or
iv. an acquisition pursuant to the
offering of shares of Common Stock by the Company to the general
public through a registration statement filed with the Securities
and Exchange Commission; or
v. an acquisition of voting
securities pursuant to a transaction described in clause
(vii) below that would not be a Change of Control under clause
(viii).
vi. individuals who, as of the date
hereof, constitute the Board (the “ Incumbent Board
”) cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered to be members of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office was a result of an
actual or threatened election contest with respect to the election
or removal of directors; or
vii. The consummation by the Company
(whether directly involving the Company or indirectly involving the
Company through one or more intermediaries) of (x) a merger,
consolidation, reorganization, or business combination or
(y) a sale or other disposition of all or substantially all of
the Company’s assets in any single transaction or series of
related transactions or (z) the acquisition of assets or stock
of another entity, in each case other than a
transaction:
1 which results in the
Company’s voting securities outstanding immediately before
the transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
Successor Entity) directly or indirectly, at least a majority of
the combined voting power of the Successor Entity’s
outstanding voting securities immediately after the transaction;
or
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2 after which more than 50% of the
members of the board of directors of the Successor Entity were
members of the Incumbent Board at the time of the Board’s
approval of the transaction or the agreement providing for the
transaction.
viii. The Company’s
stockholders approve a liquidation or dissolution of the
Company.
ix. For purposes of subsection
(i) above, the calculation of voting power shall be made as if
the date of the acquisition were a record date for a vote of the
Company’s stockholders, and for purposes of subsection
(iii) above, the calculation of voting power shall be made as
if the date of the consummation of the transaction or at the
consummation of the last of a series of related transactions were a
record date for a vote of the Company’s stockholders. For
purposes of subsection (iii) “ Successor Entity
” means the Company or the “person” that, as a
result of the transaction, controls, directly or indirectly, the
Company or owns, directly or indirectly, all or substantially all
of the Company’s assets or otherwise succeeds to the business
of the Company.
(c) “Corporate Status”
describes the status of a person who is or was a director, officer,
employee or agent of the Company or of any other corporation,
limited liability company, partnership or joint venture, trust,
employee benefit plan or other enterprise which such person is or
was serving at the request of the Company.
(d) “Disinterested
Director” means a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(e) “Enterprise” will
mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan
or other enterprise of which Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary.
(f) “Expenses” will
include all reasonable attorneys’ fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, any federal, state, local
or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, ERISA excise
taxes and penalties, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in, or otherwise
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participating in, a Proceeding. Expenses also
will include (i) Expenses incurred in connection with any
appeal resulting from any Proceeding, including without limitation
the premium, security for, and other costs relating to any cost
bond, supersedeas bond, or other appeal bond or its equivalent, and
(ii) for purposes of Section 14(d) only, Expenses
incurred by Indemnitee in connection with the interpretation,
enforcement or defense of Indemnitee’s rights under this
Agreement, by litigation or otherwise. The parties agree that for
the purposes of any advancement of Expenses for which Indemnitee
has made written demand to the Company in accordance with this
Agreement, all Expenses included in such demand that are certified
by affidavit of Indemnitee’s counsel as being reasonable will
be presumed conclusively to be reasonable. Expenses, however, will
not include amounts paid in settlement by Indemnitee or the amount
of judgments or fines against Indemnitee.
(g) “Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent:
(i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning the
Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), or (ii) any other party
to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” will not include any person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees
to pay the reasonable fees and expenses of the Independent Counsel
referred to above and to fully indemnify such counsel against any
and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant
hereto.
(h) The term
“Proceeding” will include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed proceeding, whether brought
in the right of the Company or otherwise and whether of a civil,
criminal, administrative legislative, or investigative (formal or
informal) nature, including any appeal therefrom, in which
Indemnitee was, is or will be involved as a party, potential party,
non-party witness or otherwise by reason of the fact that
Indemnitee is or was a director or officer of the Company, by
reason of any action taken by him or of any action on his part
while acting as director or officer of the Company, or by reason of
the fact that he is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust or
other enterprise, in each case whether or not serving in such
capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement. If the Indemnitee believes in good
faith that a given situation may lead to or culminate in the
institution of a Proceeding, this will be considered a Proceeding
under this paragraph.
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(i) Reference to “other
enterprise” will include employee benefit plans; references
to “fines” will include any excise tax assessed with
respect to any employee benefit plan; references to “serving
at the request of the Company” will include any service as a
director, officer, employee or agent of the Company which imposes
duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan
will be deemed to have acted in manner “not opposed to the
best interests of the Company” as referred to in this
Agreement.
Section 3. Indemnity in
Third-Party Proceedings. The Company will indemnify Indemnitee
in accordance with the provisions of this Section 3 if
Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding, other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant
to this Section 3, Indemnitee will be indemnified to the
fullest extent permitted by applicable law against all Expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on his behalf in connection
with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company and, in the case of a criminal proceeding had no reasonable
cause to believe that his conduct was unlawful. The parties hereto
intend that this Agreement will provide to the fullest extent
permitted by law for indemnification in excess of that expressly
permitted by statute, including, without limitation, any
indemnification provided by the Company’s Certificate of
Incorporation, its Bylaws, vote of its stockholders or
disinterested directors or applicable law.
Section 4. Indemnity in
Proceedings by or in the Right of the Company. The Company will
indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is, or is threatened to be made, a
party to or a participant in any Proceeding by or in the right of
the Company to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee will be indemnified to the fullest
extent permitted by applicable law against all Expenses actually
and reasonably incurred by him or on his behalf in connection with
such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company. No indemnification for Expenses will be made under this
Section 4 in respect of any claim, issue or matter as to which
Indemnitee will have been finally adjudged by a court to be liable
to the Company, unless and only to the extent that the Delaware
Court of Chancery or any court in which the Proceeding was brought
will determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to
indemnification.
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Section 5. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, to the
fullest extent permitted by applicable law and to the extent that
Indemnitee is a party to (or a participant in) and is successful,
on the merits or otherwise, in any Proceeding or in defense of any
claim, issue or matter therein, in whole or in part, the Company
will indemnify Indemnitee against all Expenses actually and
reasonably incurred by him in connection therewith. If Indemnitee
is not wholly successful in such Proceeding but is successful, on
the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company will
indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection with or related to
each successfully resolved claim, issue or matter to the fullest
extent permitted by law. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, will be deemed
to be a successful result as to such claim, issue or
matter.
Section 6. Indemnification
For Expenses of a Witness. Notwithstanding any other provision
of this Agreement, to the fullest extent permitted by applicable
law and to the extent that Indemnitee is, by reason of his
Corporate Status, a witness or otherwise asked to participate in
any Proceeding to which Indemnitee is not a party, he will be
indemnified against all Expenses actually and reasonably incurred
by him or on his behalf in connection therewith.
Section 7. Partial
Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount
thereof, the Company will nevertheless indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.
Section 8. Additional
Indemnification.
(a) Notwithstanding any limitation
in Sections 3, 4, or 5, the Company will indemnify Indemnitee to
the fullest extent permitted by applicable law if Indemnitee is a
party to or threatened to be made a party to any Proceeding
(including a Proceeding by or in the right of the Company to
procure a judgment in its favor) against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with the
Proceeding.
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(b) For purposes of
Section 8(a), the meaning of the phrase “to the fullest
extent permitted by applicable law” will include, but not be
limited to:
i. to the fullest extent permitted
by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL,
and
ii. to the fullest extent authorized
or permitted by any amendments to or replacements of the DGCL
adopted after the date of this Agreement that increase the extent
to which a corporation may indemnify its officers and
directors.
Section 9. Exclusions.
Notwithstanding any provision in this Agreement, the Company will
not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually
been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess
beyond the amount paid under any insurance policy or other
indemnity provision; or
(b) for (i) an accounting of
profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act (as defined in
Section 2(b) hereof) or similar provisions of state statutory
law or common law, or (ii) any reimbursement of the Company by
the Indemnitee of any bonus or other incentive-based or
equity-based compensation or of any profits realized by the
Indemnitee from the sale
