Exhibit 10.1
INDEMNITY
AGREEMENT
T HIS I NDEMNITY A GREEMENT (this “ Agreement ”)
dated as of
, 20
, is made by and between
C ARDIO
MEMS, I
NC ., a
Delaware corporation (the “ Company ”),
and
(“ Indemnitee ”).
R ECITALS
A. The Company desires to attract and retain the
services of highly qualified individuals as directors, officers,
employees and agents.
B. The Company’s bylaws (the “
Bylaws ”) require that the Company indemnify
its directors, and empowers the Company to indemnify its officers,
employees and agents, as authorized by the Delaware General
Corporation Law, as amended (the “ Code
”), under which the Company is organized and such Bylaws
expressly provide that the indemnification provided therein is not
exclusive and contemplates that the Company may enter into separate
agreements with its directors, officers and other persons to set
forth specific indemnification provisions.
C. Indemnitee does not regard the protection
currently provided by applicable law, the Company’s governing
documents and available insurance as adequate under the present
circumstances, and the Company has determined that Indemnitee and
other directors, officers, employees and agents of the Company may
not be willing to serve or continue to serve in such capacities
without additional protection.
D. The Company desires and has requested Indemnitee
to serve or continue to serve as a director, officer, employee or
agent of the Company, as the case may be, and has proferred this
Agreement to Indemnitee as an additional inducement to serve in
such capacity.
E. Indemnitee is willing to serve, or to continue
to serve, as a director, officer, employee or agent of the Company,
as the case may be, if Indemnitee is furnished the indemnity
provided for herein by the Company.
A GREEMENT
N OW T HEREFORE , in consideration of the mutual covenants and
agreements set forth herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Definitions .
(a) Agent . For purposes of this Agreement,
the term “agent” of the Company means any person who:
(i) is or was a director , officer, employee or other
fiduciary of the Company or a subsidiary of the Company; or
(ii) is or was serving at the request or for the convenience
of, or representing the interests of, the Company or a subsidiary
of the Company, as a director, officer, employee or other fiduciary
of a foreign or domestic corporation, partnership, joint venture,
trust or other enterprise.
1.
(b) Expenses . For purposes of this
Agreement, the term “expenses” shall be broadly
construed and shall include, without limitation, all direct and
indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys’, witness, or other professional
fees and related disbursements, and other out-of-pocket costs of
whatever nature), actually and reasonably incurred by Indemnitee in
connection with the investigation, defense or appeal of a
proceeding or establishing or enforcing a right to indemnification
under this Agreement, the Code or otherwise, and amounts paid in
settlement by or on behalf of Indemnitee, but shall not include any
judgments, fines or penalties actually levied against Indemnitee
for such individual’s violations of law. The term
“expenses” shall also include reasonable compensation
for time spent by Indemnitee for which he is not compensated by the
Company or any subsidiary or third party (i) for any period
during which Indemnitee is not an agent, in the employment of, or
providing services for compensation to, the Company or any
subsidiary; and (ii) if the rate of compensation and estimated
time involved is approved by the directors of the Company who are
not parties to any action with respect to which expenses are
incurred, for Indemnitee while an agent of, employed by, or
providing services for compensation to, the Company or any
subsidiary.
(c) Proceedings . For purposes of this
Agreement, the term “proceeding” shall be broadly
construed and shall include, without limitation, 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 or investigative
nature, and whether formal or informal in any case, in which
Indemnitee was, is or will be involved as a party or otherwise by
reason of: (i) the fact that Indemnitee is or was a director
or officer of the Company; (ii) the fact that any action taken
by Indemnitee or of any action on Indemnitee’s part while
acting as director, officer, employee or agent of the Company; or
(iii) the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, and in any such case described
above, whether or not serving in any such capacity at the time any
liability or expense is incurred for which indemnification,
reimbursement, or advancement of expenses may be provided under
this Agreement.
(d) Subsidiary . For purposes of this
Agreement, the term “subsidiary” means any corporation
or limited liability company of which more than 50% of the
outstanding voting securities or equity interests are owned,
directly or indirectly, by the Company and one or more of its
subsidiaries, 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.
(e) Independent Counsel . For purposes of
this Agreement, the term “independent counsel” means a
law firm, or a partner (or, if applicable, member) of such a law
firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five (5) years has been,
retained to represent: (i) the Company or Indemnitee in any
matter material to either such party, or (ii) any other party
to the proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“independent counsel” shall 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.
2.
2. Agreement to Serve
. Indemnitee will serve, or continue
to serve, as a director, officer, employee or agent of the Company
or any subsidiary, as the case may be, consistent with any
fiduciary, employment and/or any other obligation to the Company,
at the will of such corporation (or under separate agreement, if
such agreement exists), in the capacity Indemnitee currently serves
as an agent of such corporation, so long as Indemnitee is duly
appointed or elected and qualified in accordance with the
applicable provisions of the bylaws or other applicable charter
documents of such corporation, or until such time as Indemnitee
tenders his or her resignation in writing; provided, however, that
nothing contained in this Agreement is intended as an employment
agreement between Indemnitee and the Company or any of its
subsidiaries or to create any right to continued employment of
Indemnitee with the Company or any of its subsidiaries in any
capacity.
The Company acknowledges that it has
entered into this Agreement and assumes the obligations imposed on
it hereby, in addition to and separate from its obligations to
Indemnitee under the Bylaws or pursuant to any other contractual
obligation that may exist, to induce Indemnitee to serve, or
continue to serve, as a director, officer, employee or agent of the
Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer, employee or
agent of the Company.
3.
Indemnification.
(a) Indemnification in Third Party
Proceedings . Subject to Section 10 below, the Company
shall indemnify Indemnitee to the fullest extent permitted by the
Code, as the same may be amended from time to time (but, only to
the extent that such amendment permits Indemnitee to broader
indemnification rights than the Code permitted prior to adoption of
such amendment), if Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any proceeding, for any
and all expenses, actually and reasonably incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of
such proceeding.
(b) Indemnification in Derivative
Actions and Direct Actions by the Company . Subject to Section 10 below, the Company
shall indemnify Indemnitee to the fullest extent permitted by the
Code, as the same may be amended from time to time (but, only to
the extent that such amendment permits Indemnitee to broader
indemnification rights than the Code permitted prior to adoption of
such amendment), if Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any proceeding by or in
the right of the Company to procure a judgment in its favor,
against any and all expenses actually and reasonably incurred by
Indemnitee in connection with the investigation, defense,
settlement, or appeal of such proceedings.
4. Indemnification of Expenses of Successful
Party . 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.
5. Partial Indemnification . If Indemnitee
is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any
expenses actually and reasonably incurred by Indemnitee in the
investigation, defense, settlement or appeal of a proceeding, but
is precluded by applicable law or the specific terms of this
Agreement to indemnification for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
6. Advancement of Expenses . To the extent
not prohibited by law, the Company shall advance the expenses
incurred by Indemnitee in connection with any proceeding, and such
advancement shall be made within twenty (20) days after the
receipt by the Company of a statement or statements requesting such
advances (which shall include invoices received by Indemnitee in
connection with such expenses but, in the case of invoices in
connection with legal services, any references to legal work
performed or to expenditures made that would cause Indemnitee to
waive any privilege accorded by applicable law shall not be
included with the invoice) and upon request of the Company, an
undertaking to repay the advancement of expenses if and to the
extent that 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.
Advances shall be unsecured, interest free and without regard to
Indemnitee’s ability to repay the expenses. 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 and this
right of advancement, including expenses incurred preparing and
forwarding statements to the Company to support the advances
claimed. Indemnitee acknowledges that the execution and delivery of
this Agreement shall constitute an undertaking providing that
Indemnitee shall, to the fullest extent required by law, repay the
adv
