Exhibit 10.5
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“ Agreement ”), is made and entered into as of
the __ day of ___________, between Ophthalmic Imaging Systems,
Inc., a California corporation (“ Corporation
”), and ______________ (“ Director
”).
WHEREAS, Director will be a member
of the Board of Directors of Corporation, and in such capacity,
will perform a valuable service for Corporation;
WHEREAS, in accordance with the
authorization provided by subsections (a)(10) and (a)(11) of
Section 204 of the California General Corporation Code, as amended
(“Code”), Article Four and Five of the
Corporation’s Amended and Restated Articles of Incorporation
(the “Articles”) provides that the liability of
directors of Corporation for monetary damages shall be eliminated
to the fullest extent permissible under California law and
authorizes Corporation to provide indemnification to members of its
Board of Directors through agreements with such members in excess
of the indemnification otherwise permitted by Section 317 of the
Code;
WHEREAS, Corporation recognizes that
the indemnification provided by this Agreement is of great
importance in attracting highly qualified individuals, such as
Director, to serve as members of its Board of Directors;
and
WHEREAS, in order to induce Director
to serve as a member of the Board of Directors of Corporation,
Corporation has determined and agreed to enter into this Agreement
with Director for the purpose of fully implementing the provisions
of Section 204 and Section 317 of the Code and Article Four and
Five of the Articles.
NOW, THEREFORE, in consideration of
Director’s service as a director after the date hereof, the
parties hereto agree as follows:
Section 1.
Indemnity of Director
. Corporation hereby
agrees to hold harmless and indemnify Director to the fullest
extent authorized by the provisions of Section 317 of the Code, as
it may be amended from time to time.
Section
2. Additional Indemnity
. Subject only to the limitations set forth
in Section 3 hereof, Corporation hereby further agrees to hold
harmless and indemnify Director:
(a) against
any and all expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by Director in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in the
right of Corporation) to which Director is, was or at any time
becomes a party, or is threatened to be made a party, by reason of
the fact that Director is, was or at any time becomes a director,
officer, employee or agent of Corporation, or is or was serving or
at any time serves at the request of Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise; and
(b) otherwise
to the fullest extent as indemnification may be provided to
Director by Corporation under the provisions of Article V of the
Articles and Sections 204(a)(11) and 317 of the Code.
Section
3. Limitations on
Additional Indemnity .
(a) No
indemnification pursuant to Section 2 hereof shall be paid by
Corporation for any of the following:
(i) to
the extent that Director is or has been indemnified or reimbursed
pursuant to Section 1 hereof or any Directors and Officers
Liability Insurance purchased and maintained by
Corporation;
(ii) with
respect to remuneration paid to Director if it shall be determined
by a final judgment or other final adjudication that such
remuneration was in violation of applicable law;
(iii) on
account of any suit pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934, as amended, and amendments
thereto or similar provisions of any federal, state or local
statutory law in which judgment is rendered against Director for an
accounting of profits made from the purchase or sale by Director of
securities of Corporation;
(iv) if
a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful under applicable
law; or
(v) on
account of any action, suit or proceeding (other than a proceeding
referred to in Section 8(b) hereof) commenced by the Director
against Corporation or against any officer, director or shareholder
of Corporation unless authorized in the specific case by action of
the Board of Directors;
(b) In
addition to those limitations set forth above in paragraph (a) of
this Section 3, no indemnification pursuant to Section 2 hereof in
an action brought by or in the right of Corporation for breach of
the Directors duties to Corporation and its shareholders shall be
paid by Corporation for any of the following:
(i) on
account of Director’s acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law,
unless Director had reasonable cause to believe his conduct was
lawful or had no reasonable cause to believe his conduct was
unlawful;
(ii) on
account of acts or omissions that Director believes to be contrary
to the best interests of Corporation or its shareholders or that
involve the absence of good faith on the part of
Director;
(iii) to
the extent prohibited by Section 310 of the Code (contracts in
which a director has material financial interest);
(iv) to
the extent prohibited by Section 316 of the Code (corporate actions
subjecting directors to joint and several liability for prohibited
distributions, loans and guarantees); or,
(v) in
any circumstances in which indemnity is expressly prohibited by
Section 317 of the Code;
(c) Notwithstanding
the foregoing, Corporation hereby acknowledges that Director may
have certain rights to indemnification, advancement of expenses
and/or insurance provided by AccelMed, L.P. or its affiliates
(“AccelMed”) Corporation hereby agrees that it (i) is,
relative to AccelMed, the indemnitor of first resort (i.e.,
Corporation’s obligations to Director under this Agreement
are primary and any duplicative, overlapping or corresponding
obligations of AccelMed are secondary), (ii) shall be required to
make all advances and other payments under this Agreement, and
shall be fully liable therefor, without regard to any rights
Director may have against AccelMed, and (iii) irrevocably waives,
relinquishes and releases AccelMed from any and all claims against
AccelMed for contribution, subrogation or any other recovery of any
kind in respect thereof. Corporation further agrees that no
advancement or payment by AccelMed on behalf of Director with
respect to any claim for which Director has sought indemnification
from Corporation shall affect the foregoing and AccelMed shall have
a right of contribution and/or be subrogated to the extent of such
advancement or payment to all of the rights of recovery of Director
against Corporation. Corporation and Director agree that AccelMed
is an express third party beneficiary of the terms of this Section
3(c).
Section 4.
Contribution
. If
the indemni
