EXHIBIT 10.37
INDEMNITY
AGREEMENT
THIS AGREEMENT is made as of March
27, 2006 by and between Bioject Medical Technologies Inc., an
Oregon corporation (Company), and Jerry Cobbs (Indemnitee), a
director of the Company.
RECITALS
A.
It is essential to the Company to retain and attract as directors
the most capable persons available.
B.
The increase in corporate litigation subjects directors to
expensive litigation risks at the same time that the availability
and coverage of directors’ and officers’ liability
insurance has been reduced.
C.
It is now and always has been the express policy of the Company to
indemnify its directors so as to provide them with the maximum
possible protection permitted by law.
D.
The bylaws of the Company require indemnification of the directors
of the Company to the fullest extent permitted by the Oregon
Business Corporation Act (Act). The Act expressly provides that the
indemnification provisions set forth in the Act are not exclusive,
and thereby contemplates that contracts may be entered into between
the Company and members of the board of directors with respect to
indemnification.
NOW, THEREFORE, the Company and
Indemnitee agree as follows:
1.
Services to the Company. Indemnitee agrees to serve or
continue to serve as a director of the Company.
2.
Definitions. As used in this Agreement:
(a)
The term “Proceeding” shall include any threatened,
pending or completed action, suit or proceeding, whether brought in
the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which
Indemnitee is or was a director or officer of the Company or is or
was serving at the request of the Company as a director, officer,
or agent of another corporation, partnership, joint venture, trust
or other enterprise, whether or not serving in such capacity at the
time any liability or expense is incurred for which indemnification
or reimbursement can be provided under this Agreement.
(b)
The term “Expenses” includes, without limitation,
expense of investigations, judicial or administrative proceedings
or appeals, attorneys’ fees and disbursements and any
expenses of establishing a right to indemnification under Section
11 of this Agreement, but shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(c)
References to “other enterprise” shall include employee
benefit plans; references to “fines” shall include any
excise tax assessed with respect to any employee benefit plan;
reference to “serving at the request of the Company”
shall 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 reasonably believed
to be in the best interest of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best
interests of the Company” as referred to in this
Agreement.
3.
Indemnity in Third-Party Proceedings. The Company shall
indemnify Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee is a party to or threatened to be made a
party to any Proceeding (other than 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, but only if Indemnitee acted in good faith and in a
manner which Indemnitee
reasonably believed to be in or not opposed to
the best interests of the Company and, in the case of a criminal
proceeding, in addition, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
4.
Indemnity in Proceedings by or in the Right of the Company.
The Company shall indemnify Indemnitee in accordance with the
provisions of this Section 4 if Indemnitee is a party to or
threatened to be made a party to any Proceeding by or in the right
of Company to procure a judgment in its favor against all Expenses
actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of the Proceeding, but only if Indemnitee
acted in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company. No indemnification for Expenses shall be made under this
Section 4 in respect of any claim, issue or matter as to which
Indemnitee shall have been finally adjudged by a court to be liable
to the Company, unless and only to the extent that any court in
which the Proceeding was brought shall 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 indemnity.
5.
Indemnification of Expenses of Successful Party.
Notwithstanding any other provisions 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 an action
without prejudice, the Company shall indemnify Indemnitee against
all Expenses incurred in connection therewith.
6.
Additional Indemnification.
(a)
Notwithstanding any limitation in Sections 3, 4 or 5, the Company
shall indemnify Indemnitee to the fullest extent permitted by 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. No indemnity shall be made under this Section 6(a) on
account of Indemnitee’s conduct which constitutes a breach of
Indemnitee’s duty of loyalty to the Company or its
shareholders or is an act or omission not in good faith or which
involves intentional misconduct or a knowing violation of the
law.
(b)
Notwithstanding any limitation in Sections 3, 4, 5 or 6(a), the
Company shall indemnify Indemnitee to the fullest extent permitted
by 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.
(c)
For purposes of Sections 6(a) and 6(b), the meaning of the phrase
“to the fullest extent permitted by law” shall include,
but not be limited to:
(i)
to the fullest extent permitted by the provision of the Act that
authorizes or contemplates additional indemnification by agreement,
or the corresponding provision of any amendment to or replacement
of the Act, and
(ii)
to the fullest extent authorized or permitted by any amendments to
or replacements of the Act adopted after the date of this Agreement
that increase the extent to which a corporation may indemnify its
officers and directors.
7.
Exclusions. Notwithstanding any provision in this Agreement,
the Company shall 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
