INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT (the “Agreement”) is made as
of
, 2009 by and between TopSpin Medical, Inc., a Delaware corporation
(the “Company”), and
(“Indemnitee”).
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The Company
desires to attract and retain qualified directors, officers,
employees and other agents (hereinafter collectively “Office
Holders”, and individually “Office Holder”), and
to provide them with protection against liability and expenses
incurred while acting in that capacity;
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The Amended and
Restated Certificate of Incorporation of the Company (the
“Certificate”) and the Amended and Restated Bylaws of
the Company (the “Bylaws”) contain provisions for
indemnifying Office Holders of the Company, and the Bylaws and
Delaware law contemplate that separate contracts may be entered
into between the Company and its Office Holders with respect to
their indemnification by the Company, which contracts may provide
greater protection than is afforded by the Certificate and
Bylaws;
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The Company
understands that Indemnitee has reservations about serving or
continuing to serve the Company without adequate protection against
personal liability arising from such service, and that it is also
of critical importance to Indemnitee that adequate provision be
made for advancing costs and expenses of legal defense;
and
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The Board of
Directors of the Company has approved as being in the best
interests of the Company indemnity contracts substantially in the
form of this Agreement for directors and officers of the Company
and its subsidiaries and for certain other employees and agents of
the Company designated by the Board of Directors.
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NOW, THEREFORE,
in order to induce Indemnitee to serve or to continue to serve as
an Office Holder of the Company, and in consideration of
Indemnitee’s service to the Company, the parties agree as
follows:
1.
Contractual Indemnity . In addition to the indemnification
provisions of the Bylaws, the Company hereby agrees, subject to the
limitations of Sections 2 and 5 hereof:
1.1. To
indemnify, defend and hold Indemnitee harmless to the greatest
extent possible under applicable law from and against any and all
judgments, fines, penalties, amounts paid in settlement and any
other amounts reasonably incurred or suffered by Indemnitee
(including attorneys’ fees) 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 the Company, to which Indemnitee
is, was or at any time becomes a party, or is threatened to be made
a party, by reason of the fact that Indemnitee is, was or at any
time becomes an Office Holder of the Company or is or was serving
or at any time serves at the request of the Company as an Office
Holder of another corporation, partnership, joint venture, trust or
other enterprise (collectively referred to hereafter as a
“Claim”), whether or not arising prior to the date of
this Agreement.
1.2. To pay any
and all expenses reasonably incurred by Indemnitee in defending any
Claim or Claims (including reasonable attorneys’ fees and
other reasonable costs of investigation and defense), as the same
are incurred and in advance of the final disposition of any such
Claim or Claims, upon receipt of an undertaking by or on behalf of
Indemnitee to reimburse such amounts if it shall be ultimately
determined that Indemnitee: (i) is not entitled to be
indemnified by the Company under this Agreement, and (ii) is
not entitled to be indemnified by the Company under the Certificate
or the Bylaws.
The termination of any action or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that: (i) Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in the best
interests of the Company, or (ii) with respect to any criminal
action or proceeding, Indemnitee had reasonable cause to believe
that Indemnitee’s conduct was unlawful.
2.
Limitations on Contractual Indemnity . Indemnitee shall not
be entitled to indemnification or advancement of expenses under
Section 1:
2.1. if a court
of competent jurisdiction, by final judgment or decree, shall
determine that (i) the Claim or Claims in respect of which
indemnity is sought arise from Indemnitee’s fraudulent,
dishonest or willful misconduct, or (ii) such indemnity is not
permitted under applicable law; or
2.2. on account
of any suit in which judgment is rendered for an accounting of
profits made from the purchase or sale by Indemnitee of securities
of the Company in violation of the provisions of Section 16(b) of
the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law;
or
2.3. for any
acts or omissions or transactions from which an Office Holder may
not be indemnified under the Delaware General Corporation Law;
or
2.4. with
respect to proceedings or claims initiated or brought voluntarily
by Indemnitee and not by way of defense, except (i) with
respect to proceedings brought in good faith to establish or
enforce a right to indemnification under this Agreement or any
other statute or law, or (ii) at the Company’s
discretion, in specific cases if the Board of Directors of the
Company has approved the initiation or bringing of such suit;
or
2.5. for
expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) which have been paid directly to
Indemnitee by an insurance carrier under a policy of
directors’ and officers’ liability insurance maintained
by the Company; or
2.6. on account
of any suit brought against Indemnitee for misuse or
misappropriation of non public information, or otherwise involving
Indemnitee’s status as an “insider” of the
Company, in connection with any purchase or sale by Indemnitee of
securities of the Company.
3.
Continuation of Contractual Indemnity . Subject to the
termination provisions of Section 11, all agreements and
obligations of the Company contained herein shall continue for so
long as Indemnitee shall be subject to any possible action, suit,
proceeding or other assertion of a Claim or Claims.
4.
Expenses; Indemnification Procedure . The Company shall
advance all expenses incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or
criminal action or proceeding referenced in Section 1 hereof
(but not amounts actually paid in settlement of any such action or
proceeding). Indemnitee hereby undertakes to repay such amounts
advanced if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the
Company as authorized hereby. The advances to be made hereunder
shall be paid by the Company to Indemnitee within twenty
(20) days following delivery of a written request therefor by
Indemnitee to the Company.
5.
Notification and Defense of Claim . If any action, suit,
proceeding or other Claim is brought against Indemnitee in respect
of which indemnity may be sought under this Agreement:
5.1. Indemnitee
will promptly notify the Company in writing of the commencement
thereof, and the Company and any other indemnifying party similarly
notified will be entitled to participate therein at its own expense
or to assume the defense thereof and to employ counsel reasonably
satisfactory to Indemnitee. Notice to the Company shall be directed
to the Chief Executive Officer of the Company at the address shown
on the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee). Notice shall
be deemed received three (3) business days after the date
postmarked if sent by domestic certified or registered mail,
properly addressed; otherwise notice shall be deemed received when
such notice shall actually be received by the Company. Indemnitee
shall have the right to employ its own counsel in
connection
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