THIS
AGREEMENT is made and entered into as of ___, 2006 by and
between Home Diagnostics, Inc., a Delaware corporation (the
“Corporation”), and [Name of SOX Officer]
(“Agent”).
WHEREAS ,
Agent performs a valuable service to the Corporation in his
capacity as the [Title of SOX Officer] of the
Corporation;
WHEREAS ,
the stockholders of the Corporation have adopted bylaws (the
“Bylaws”) and Certificate of Incorporation (the
“Certificate”) provisions providing for the
indemnification of the directors, officers, employees and other
agents of the Corporation, including persons serving at the request
of the Corporation in such capacities with other corporations or
enterprises, as authorized by the Delaware General Corporation Law,
as amended (the “Delaware Law”);
WHEREAS ,
the Certificate, Bylaws and/or the Delaware Law, by their
non-exclusive nature, permit contracts between the Corporation and
its agents, officers, employees and other agents with respect to
indemnification of such persons; and
WHEREAS ,
in order to induce Agent to serve and continue to serve as the
[Title of SOX Officer] of the Corporation, the Corporation has
determined and agreed to enter into this Agreement with
Agent;
NOW,
THEREFORE , in consideration of Agent’s service and
continued service as after the date hereof, the parties hereto
agree as follows:
1. Services to the Corporation. Agent will serve, at
the will of the Board of Directors of the Corporation, as the
[Title of SOX Officer] of the Corporation or as a director, officer
or other fiduciary of an affiliate of the Corporation (including
any employee benefit plan of the Corporation) faithfully and to the
best of his ability so long as he is duly elected and qualified in
accordance with the provisions of the Bylaws or other applicable
charter documents of the Corporation or such affiliate;
provided, however, that Agent may at any time and for any
reason resign from such position.
2. Indemnity of Agent. The Corporation hereby agrees to
hold harmless and indemnify Agent to the fullest extent authorized
or permitted by the provisions of the Bylaws, the Certificate and
the Delaware Law, as the same may be amended from time to time
(but, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than the
Bylaws, the Certificate or the Delaware Law permitted prior to
adoption of such amendment).
3. Additional Indemnity. In addition to and not in
limitation of the indemnification otherwise provided for herein,
and subject only to the exclusions set forth in Section 4
hereof, the Corporation hereby further agrees to hold harmless and
indemnify Agent:
(a) against any and all costs and expenses (including
reasonable attorneys’ and accountants’ fees and
expenses incurred in the investigation, defense or settlement of
any claim), witness fees, damages, judgments, fines and amounts
paid in settlement and any other amounts that Agent becomes legally
obligated to pay because of any claim or claims made against him in
connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, arbitrational,
administrative or investigative (including an action by or in the
right of the Corporation) to which Agent is, was or at any time
becomes a party, or is threatened to be made a party, by reason of
the fact that Agent is, was or at any time becomes a director,
officer, employee or other agent of the Corporation, or is or was
serving or at any time serves at the request of the Corporation as
a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to
Agent by the Corporation under Delaware Law, the Certificate and
the Bylaws.
4. Limitations on Indemnity. No indemnity pursuant to
Section 2 or 3 hereof shall be paid by the
Corporation:
(a) on account of any claim against Agent for an accounting
of profits made from the purchase or sale by Agent of securities of
the Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto (the
“Exchange Act”), or any violation of any federal,
state, or foreign statutory laws or regulations prescribing insider
trading or similar provisions of any federal, state, local or
foreign law; or
(b) if such indemnification is not lawful, and in such case,
only to the extent such indemnification is not lawful.
5. Continuation of Indemnity. All agreements and
obligations of the Corporation contained herein shall continue
during the period Agent is a director, officer, employee or other
agent of the Corporation (or is or was serving at the request of
the Corporation as a director, officer, employee or other agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so
long as Agent shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, arbitrational, administrative or investigative, by reason
of the fact that Agent was serving in the capacity referred to
herein.
6. Partial Indemnification . Agent shall be entitled
under this Agreement to indemnification by the Corporation for a
portion of the expenses (including reasonable attorneys’ and
accountants’ fees and expenses incurred in the investigation,
defense or settlement of any
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claim), witness
fees, damages, judgments, fines and amounts paid in settlement and
any other amounts that Agent becomes legally obligated to pay in
connection with any action, suit or proceeding referred to in
Section 2 or 3 hereof in the event that Agent is not entitled
hereunder to indemnification for the total amount thereof, and the
Corporation shall indemnify Agent for the maximum portion thereof
to which Agent is lawfully entitled.
7. Notification and Defense of Claim. Not later than
thirty (30) days after receipt by Agent of notice of the
commencement of any action, suit or proceeding, Agent will, if a
claim in respect thereof is to be made against the Corporation
under this Agreement, notify the Corporation of the commencement
thereof; but the failure so to notify the Corporation will not
relieve it from any liability which it may have to Agent otherwise
than under this Agreement, or under this Agreement, except to the
extent the Corporation is directly prejudiced by such failure to so
notify the Corporation. With respect to any such action, suit or
proceeding:
(a) the Corporation will be entitled to participate therein
at its own expense;
(b) except as otherwise provided below, the Corporation may,
at its option and jointly with any other indemnifying party
similarly notified and electing to assume such defense, assume the
defense thereof, with counsel reasonably satisfactory to Agent.
After notice from the Corporation to Agent of its election to
assume the defense thereof, the Corporation will not be liable to
Agent under this Agreement for any legal or other expenses
subsequently incurred by Agent in connection with the defense
thereof except for reasonable costs of investigation or otherwise
as provided below. Agent shall have the right to employ separate
counsel in such action, suit or proceeding, but the fees and
expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of
Agent unless (i) the employment of counsel by Agent has been
authorized by the Corporation, (ii) Agent shall have
reasonably concluded that there may be a conflict of interest
between the Corporation and Agent in the conduct of the defense of
such action or (iii) the Corporation shall not in fact have
employed counsel reasonably satisfactory to Agent to assume the
defense of action, in each of which cases the fees and expenses of
Agent’s separate counsel shall be at the expense of the
Corporation. The Corporation shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf
of the Corporation or as to which Agent shall have made the
conclusion provided for in clause (ii) above; and
(c) the Corporation shall not be liable to indemnify Agent
under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent, which shall
not be unreasonably withheld. The Corporation shall be permitted to
settle any action except that it shall not settle any action or
claim in any manner which would impose any penalty or limitation on
Agent, or any non-monetary obligation, without Agent’s
written consent, which may be given or withheld in Agent’s
sole discretion.
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8. Expenses. The Corporation shall advance, prior to
the final disposition of any action, suit or proceeding, promptly
following request therefor, all costs and expenses (including
without limitation reasonable attorneys’ and
accountants’ fees and expenses) incurred by Agent in
connection with such action, suit or proceeding upon receipt of an
undertaking by or on behalf of Agent to repay said amounts if it
shall be determined ultimately that Agent is not entitled to be
indemnified under the provisions of this Agreement, the Bylaws, the
Certificate or the Delaware Law.
9. Enforcement. Any right to indemnification or
advances granted by this Agreement to Agent shall be enforceable by
or on behalf of Agent in any court of competent jurisdiction if
(i) the claim for indemnification or advances is denied, in
whole or in part, (ii) no disposition of such claim is made
within thirty (30) days of request therefor, or (iii) the
Corporation should fail to comply with the provisions of
Section 8 hereof. Agent, in such enforcement action, if
successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting his claim. It shall be a defense to any
action for which a claim for indemnification is made under
Section 2 or 3 hereof (other than an action brought to enforce
a claim for expenses pursuant to Section 8 hereof, provided
that the required undertaking has been tendered to the Corporation)
that Agent is not entitled to indemnification because of the
limitations set forth in Section 4 hereof. Neither the failure
of the Corporation (including its Board of Directors or its
stockholders) to have made a determination prior to the
commencement of such enforcement action that indemnification of
Agent is proper in the circumstances, nor an actual determination
by the Corporation (including its Board of Directors or its
stockholders) that such indemnification is improper shall be a
defense to the action or create a presumption that Agent is not
entitled to indemnification under this Agreement or
otherwise.
10. Non-Exclusivity of Rights. The rights conferred on
Agent by this Agreement shall not be exclusive of any other right
which Agent may have or hereafter acquire under any statute,
provision of the Certificate or Bylaws, agreement, vote of
stockholders or directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding office.
(a) The rights of Agent under this Agreement shall continue
after Agent has ceased to be a director, officer, employee or other
agent of the Corporation or to serve at the request of the
Corporation as a director, officer, employee or other agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise until any claims which may be
brought against Agent for which indemnification may be sought
hereunder shall be barred by any applicable statute of limitations
and shall inure to the benefit of Agent’s heirs, executors
and administrators.
(b) The Corporation shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of
the Corporation, expressly to assume and agree to perform this
Agreement in the same manner
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and to the same
extent that the Corporation would be required to perform if no such
succession had taken place.
12. Separability. Each of the provisions of this
Agreement is a separate and distinct agreement and independent of
the others, so that if any provision hereof shall be held to be
invalid for any reason, such invalidity or unenforceability shall
not affect the validity or enforceability of the other provisions
hereof. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Corporation shall nevertheless
indemnify Agent to the fullest extent provided by the Certificate,
the Bylaws, the Delaware Law or any other applicable
law.
13. Jurisdiction and Venue.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself or himself and its or his
property, to the non-exclusive jurisdiction of any Delaware court
or federal court of the United States of America sitting in the
State of Delaware, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement
or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard
and determined in any such Delaware court or, to the extent
permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding
shall
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