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EXHIBIT 10.35
OFFICER INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made as of this
16th day of October, 1996, between i-STAT Corporation, a Delaware corporation
("i-STAT"), and __________________ ("Indemnitee").
WITNESSETH THAT:
WHEREAS, Indemnitee is an executive officer of i-STAT and in such
capacity is performing a valuable service for i-STAT; and
WHEREAS, the by-laws of i-STAT (the "By-laws") provide for the
indemnification of its directors and executive officers to the maximum extent
authorized by law; and
WHEREAS, Section 145 of the Delaware General Corporation Law (the
"DGCL") specifically provides that it shall not be deemed exclusive of any other
rights to indemnification or advancement of expenses to which directors or
officers may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise; and
WHEREAS, the number of lawsuits and shareholders' derivative
lawsuits against corporations, their directors and officers has increased in
recent years, such lawsuits frequently are without merit and seek damages in
amounts having no reasonable relationship to the amount of compensation received
by the directors and officers from the corporation, and such lawsuits whether or
not meritorious are expensive and time-consuming to defend; and
WHEREAS, recent developments with respect to the application and
interpretation of the business judgment rule and statutory and by-law
indemnification provisions have created uncertainty regarding the adequacy and
reliability of the protections afforded to directors and officers thereby; and
WHEREAS, adequate directors and officers liability insurance may
not be available at a reasonable cost; and
WHEREAS, i-STAT wishes to have Indemnitee continue to serve as an
executive officer of i-STAT free from undue concern for unpredictable or
unreasonable claims for damages by reason of Indemnitee's status as an officer
of i-STAT, by
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reason of Indemnitee's decisions or actions on its behalf or by reason of
Indemnitee's decisions or actions in another capacity while serving as an
officer of i-STAT; and
WHEREAS, Indemnitee has expressed reluctance to continue to serve
as an executive officer of i-STAT without assurances that adequate insurance and
indemnification is and will continue to be provided; and
WHEREAS, in order to induce Indemnitee to continue to serve as an
executive officer of i-STAT, i-STAT has determined and agreed to enter into this
Agreement with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued
service as an executive officer of i-STAT, the parties agree as follows:
1. Directors and Officers Liability Insurance.
(a) Except as provided in (b) below, i-STAT hereby agrees
to use its best efforts to obtain and maintain directors and officers liability
insurance for Indemnitee for so long as Indemnitee shall continue to serve as an
executive officer of i-STAT and thereafter so long as Indemnitee shall be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that Indemnitee was an executive officer of i-STAT.
(b) i-STAT shall have no obligation hereunder to obtain or
maintain directors and officers liability insurance if, in the reasonable
business judgment of the Board of Directors of i-STAT, such insurance is not
reasonably available, the premium costs for such insurance are disproportionate
to the amount of coverage provided, or the coverage provided by such insurance
is limited, by exclusions or otherwise, so as to provide an insufficient
benefit.
(c) In all policies of directors and officers liability
insurance, Indemnitee shall be covered as an insured party in such a manner as
to provide Indemnitee the same rights and benefits, subject to the same
limitations, as are accorded to i-STAT's executive officer most favorably
insured by such policies.
(d) i-STAT shall give prompt written notice to Indemnitee
of any amendment or other change or modification, or any proposed amendment,
change or modification, to any policy of directors and officers
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liability insurance maintained by i-STAT and covering Indemnitee.
2. Indemnification. Subject only to the exclusions set forth in
this Agreement, i-STAT hereby agrees to hold harmless and indemnify Indemnitee
to the full extent authorized or permitted by Section 145 of the DGCL, including
any amendment thereof, or any other statutory provisions authorizing or
permitting such indemnification which are adopted after the date hereof.
Notwithstanding the foregoing, i-STAT shall not be required to indemnify
Indemnitee for any losses to the extent that such losses are covered by
directors and officers liability insurance as described in Section 1 above.
Without limiting the generality of the foregoing:
(a) Third Party Actions. i-STAT shall indemnify Indemnitee
if Indemnitee was or is a party or is threatened to be made a party to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of i-STAT) by reason of
the fact that Indemnitee is or was or had agreed to serve (so long as Indemnitee
actually is serving or did so serve) as an executive officer of i-STAT, or is or
was serving or had agreed to serve (so long as Indemnitee actually is serving or
did so serve) at the request of i-STAT as an executive officer, employee or
agent of another corporation, limited liability company, partnership, joint
venture, trust or other enterprise, against any and all expenses (including
attorneys' fees), liabilities, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection with such action, suit or proceeding, and any appeal
therefrom, if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of i-STAT,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe Indemnitee's conduct was unlawful. The termination of any action,
suit 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 Indemnitee did not satisfy the foregoing standard of conduct to the extent
applicable thereto.
(b) Suits By or in the Right of i-STAT. i-STAT shall
indemnify Indemnitee if Indemnitee is or was a party or is threatened to be made
a party to any action or suit by or in the right of i-STAT by reason of the fact
that Indemnitee is or was or had agreed to be (so long as Indemnitee actually is
or did become) an executive officer of i-STAT, or is or was serving or had
agreed to serve (so
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long as Indemnitee actually is or did so serve) at the request of i-STAT as an
executive officer, officer, employee or agent of another corporation, limited
liability company, partnership, joint venture, trust or other enterprise,
against any and all expenses (including attorneys' fees) and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection with the defense or
settlement of such action or suit or any appeal therefrom provided that
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of i-STAT and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to i-STAT unless and only
to the extent that the court in which such action or suit 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 for such expenses which the court shall deem proper.
(c) Successful Defense. To the extent that Indemnitee has
been successful on the merits or otherwise in the defense of any action, suit or
proceeding referred to in subsections (a) or (b) of this Section 2, or in the
defense of any claim, issue or matter therein, i-STAT shall indemnify Indemnitee
against any and all expenses (including attorneys' fees) actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection therewith.
Dismissal of any action with prejudice, or a settlement not involving any
payment or assumption of liability, shall be deemed a successful defense.
(d) Partial Indemnification. If Indemnitee is entitled to
indemnification under any provision of this Agreement for a portion of the
expenses (including attorneys' fees), liabilities, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by Indemnitee or
on Indemnitee's behalf in the investigation, defense, appeal or settlement of
such suit, action or proceeding, but not, however, for the total amount thereof,
i-STAT shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
(e) Advancement of Expenses. All expenses (including
attorney and other expert and professional fees and expenses) incurred by
Indemnitee or on Indemnitee's behalf in defending a civil or criminal action,
suit or proceeding, or in enforcing Indemnitee's rights under any provisions of
this Agreement, shall be paid by i-STAT in advance of the final disposition of
such action, suit or proceeding in the manner prescribed by Section 4 hereof.
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(f) Amendments to Indemnification Rights. i-STAT shall not
adopt any amendment to its Restated Certificate of Incorporation, as amended
(the "Certificate") or By-Laws the effect of which would be to deny, diminish or
encumber Indemnitee's rights to indemnity pursuant to the Certificate, By-Laws,
the DGCL or any other applicable law as applied to any act or failure to act
occurring in whole or in part prior to the date (the "Effective Date") upon
which the amendment was approved by i-STAT's Board of Directors or stockholders,
as the case may be. In the event that i-STAT shall adopt any amendment to the
Certificate or By-Laws the effect of which is to change Indemnitee's rights to
indemnity under such instruments, such amendment shall apply only to acts or
failures to act occurring entirely after the Effective Date thereof. i-STAT
shall give written notice to Indemnitee of any proposal with respect to any such
amendment no later than the date such amendment is first presented to the Board
of Directors (or any committee thereof) for consideration, and shall provide a
copy of any such amendment to Indemnitee promptly after its adoption.
(g) Indemnification for Expenses as a Witness. To the
extent Indemnitee is, by reason of Indemnitee's status as an executive officer
of i-STAT, a witness in any proceeding, i-STAT shall indemnify Indemnitee
against all expenses in connection therewith.
3. Limitations on Indemnification. No indemnity pursuant to
Section 2 hereof shall be paid by i-STAT:
(a) on account of Indemnitee's conduct which is finally
adjudged in a non-appealable decision to have been fraudulent, dishonest or
willful misconduct, or a knowing violation of law;
(b) on account of any suit in which judgment in a final,
non-appealable decision is rendered against Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities of i-STAT
within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of federal or state law;
(c) on account of the receipt by Indemnitee of any personal
profit or advantage to which Indemnitee is adjudged in a final, non-appealable
decision not to be entitled;
(d) for expenses incurred by Indemnitee, as a plaintiff, in
suits against i-STAT or against directors or other officers of i-STAT (other
than suits brought by Indemnitee to enforce Indemnitee's rights under any
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provisions of this Agreement), unless such suit is authorized by the Board of
Directors or such indemnification is required by law;
(e) if a final, non-appealable decision by a court having
jurisdiction in the matter shall determine that such indemnification is not
lawful; or
(f) for amounts paid by Indemnitee in settlement of any
action or proceeding without i-STAT's written consent.
4. Indemnification Procedures.
(a) Notice to i-STAT. Promptly after receipt by Indemnitee
of notice of the commencement of any action, suit or proceeding, Indemnitee
shall, if a claim in respect thereof is to be made against i-STAT under this
Agreement, notify i-STAT of the commencement thereof. Such notice shall set
forth in reasonable detail the events giving rise to such claim and the amount
requested, if known. Failure of Indemnitee to provide such notice shall not
relieve i-STAT of its obligations under this Agreement except to the extent such
failure has a material and adverse effect on the ability of i-STAT to meet such
obligations.
(b) Notice to Insurers. If, at the time of receipt of such
notice, i-STAT has directors and officers liability insurance in effect, i-STAT
shall give prompt notice of the commencement of such action, suit or proceeding
to the insurers in accordance with the procedures set forth in the respective
policies in favor of Indemnitee. i-STAT shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all
losses and expenses payable as a result of such action, suit or proceeding in
accordance with the terms of such policies.
(c) Advancement of Expenses. Subject to subsections (d) and
(e) below, the costs and expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in investigating, defending or appealing any action, suit or
proceeding, whether civil, criminal, administrative or investigative, or in
enforcing Indemnitee's rights under any provisions of this Agreement, covered by
Section 2 above shall be paid by i-STAT within 20 days of Indemnitee's written
request therefor even if there has been no final disposition of such action,
suit or proceeding. Indemnitee's written request shall state the amount
requested and shall be accompanied by copies of the invoices or other relevant
documentation.
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(d) Undertaking to Repay Advances. Indemnitee agrees that
Indemnitee will reimburse i-STAT for all advances paid by i-STAT to Indemnitee
under this Agreement in the event and only to the extent that it shall
ultimately be determined that Indemnitee was not entitled to be indemnified
under this Agreement.
(e) Assumption of Defense by i-STAT. Except as otherwise
provided below, i-STAT, jointly with any other indemnifying party similarly
notified, will be entitled to assume the defense of any action, suit or
proceeding of which it has been notified by Indemnitee pursuant to subsection
(a) above, with counsel reasonably satisfactory to Indemnitee. After notice from
i-STAT to Indemnitee of its election to assume the defense thereof, i-STAT will
not be liable to Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by Indemnitee; provided, however, that Indemnitee shall
have the right to employ Indemnitee's own counsel in such action, suit or
proceeding at the expense of i-STAT if, at any time after such notice from
i-STAT, (i) the employment of counsel by Indemnitee has been authorized by
i-STAT, (ii) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between i-STAT and Indemnitee in the conduct of such
defense, or (iii) i-STAT shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of
Indemnitee's counsel shall be subject to reimbursement in accordance with the
terms of this Agreement. i-STAT shall not be entitled to assume Indemnitee's
defense of any action, suit or proceeding brought by i-STAT or as to which
Indemnitee shall have made the conclusion provided for in clause (ii) above.
(f) Determination of Right to Entitlement. (i) In the event
that Indemnitee incurs liability for any fines, judgments, liabilities,
penalties or amounts paid in settlement, and indemnification is sought under
this Agreement, i-STAT shall pay (or provide for payment if so required by the
terms of any judgment or settlement) such amounts within 30 business days of
Indemnitee's written request therefor unless a determination is made within such
30 business days that the claims giving rise to such request are excluded or
indemnification is otherwise not due under this Agreement. Such determination,
and any determination required by applicable law as to whether Indemnitee has
met the standard of conduct required to qualify and entitle Indemnitee,
partially or fully, to indemnification under Section 2 of this Agreement, shall
be made, at i-STAT's discretion, (1) by the Board of Directors of i-STAT by a
majority vote of the directors who were not parties to such action, suit or
proceeding even though less than a quorum, or (2) if such a majority is not
obtainable, or even if
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obtainable a majority of the disinterested directors so directs, by written
opinion of independent legal counsel selected by i-STAT and reasonably
satisfactory to Indemnitee, or (3) by i-STAT's stockholders; provided, however,
that if a change of control has occurred such determination shall be made by
written opinion of independent legal counsel selected by Indemnitee or, if
requested by Indemnitee, by i-STAT. The term "independent legal counsel" shall
mean for this purpose an attorney or firm of attorneys experienced in matters of
corporation law that is not now nor has within the previous three years been
retained to represent Indemnitee, i-STAT or any other party to the proceeding
giving rise to the claim for indemnification hereunder; provided that
"independent legal counsel" shall not include any person who under applicable
standards of professional conduct would have a conflict of interest in
representing Indemnitee or i-STAT in an action to determine Indemnitee's rights
under this Agreement. The term "change of control" shall mean: (1) the
consummation of any transaction after which any "person" or "group" (as such
terms are used in Sections 3(a)(9), 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (the "Exchange Act")) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities, or possesses the power to vote or control the vote of securities, of
i-STAT representing 30% or more of the combined voting power of either the
Common Stock or all outstanding securities of i-STAT; or (2) the stockholders of
i-STAT approve a merger or consolidation of i-STAT with any other corporation or
entity, other than a merger or consolidation which would result in the voting
securities of i-STAT outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 66 2/3% of the combined voting
power of the voting securities of i-STAT or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of i-STAT
approve a plan of complete liquidation of i-STAT or an agreement for the sale or
disposition by i-STAT of all or substantially all of i-STAT's assets.
(ii) Notwithstanding the foregoing, Indemnitee may
within 60 days after a determination adverse to Indemnitee has been made as
provided above, or if no determination has been made within 30 business days of
Indemnitee's written request for payment, petition the Court of Chancery of the
State of Delaware or any other court of competent jurisdiction, or may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association, which award shall be deemed
final, unappealable and binding, to determine
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whether Indemnitee is entitled to indemnification under this Agreement, and such
court or arbitrator, as the case may be, shall thereupon have the exclusive
authority to make such determination unless and until such court or arbitrator
dismisses or otherwise terminates such action without having made a
determination. The court or arbitrator, as the case may be, shall make an
independent determination of entitlement irrespective of any prior determination
made by the Board of Directors, independent legal counsel or stockholders. In
any such action before the court or arbitrator, Indemnitee shall be presumed to
be entitled to indemnification and i-STAT shall have the burden of proving that
indemnification is not required under this Agreement. All fees and expenses of
any arbitrator pursuant to this provision shall be paid by i-STAT.
(g) Enforcement Expenses. In the event that Indemnitee
brings suit or takes any other action to enforce Indemnitee's rights or to
collect monies due under this Agreement, and if Indemnitee is successful
therein, i-STAT shall reimburse (to the extent not previously advanced)
Indemnitee for all of Indemnitee's reasonable expenses, including attorneys'
fees, in any such suit or action.
5. Continuation of Indemnification. i-STAT's obligations to
indemnify Indemnitee hereunder shall continue throughout the period Indemnitee
is an executive officer of i-STAT (or is serving at i-STAT's request in the
capacities described in subsections 2(a) and 2(b) above) and thereafter so long
as Indemnitee shall be subject to any possible claim, action, suit or proceeding
by reason of the fact that Indemnitee was an executive officer of i-STAT (or was
serving in such other capacities).
6. Successors and Assigns. This Agreement shall be binding upon
i-STAT, its successors and assigns (including any transferee of all or
substantially all of its assets and any successor by merger or otherwise by
operation of law), and shall inure to the benefit of Indemnitee and Indemnitee's
heirs, personal representatives, executors and administrators and shall be
binding upon Indemnitee and Indemnitee's successors in interest under this
Agreement.
7. Rights Not Exclusive. The rights provided hereunder shall not
be deemed exclusive of any other rights to which Indemnitee may be entitled
under any provision of law, Certificate of Incorporation, By-law, other
agreement, vote of stockholders or of disinterested directors or otherwise, both
as to action in Indemnitee's official capacity and as to action in any other
capacity while occupying any of the positions referred to in Section 2 of this
Agreement.
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8. Subrogation. Upon payment of any amount under this Agreement,
i-STAT shall be subrogated to the extent of such payment to all of Indemnitee's
rights of recovery therefor and Indemnitee shall take all reasonable actions
requested by i-STAT to secure such rights, including, without limitation,
execution of all documents necessary to enable i-STAT to enforce such rights.
9. Severability. In the event that any provision of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason,
such provision shall be limited or modified in its application to the minimum
extent necessary to avoid a violation of law, and, as so limited or modified,
such provision and the balance of this Agreement shall be enforceable in
accordance with their terms.
10. Integration. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof.
11. Modification. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
12. Notices. All notices given under this Agreement shall be in
writing and delivered either (i) personally, (ii) by registered or certified
mail (postage prepaid, return receipt requested), (iii) by recognized overnight
courier service or (iv) by telecopy (if promptly followed by a copy delivered as
provided in clauses (i), (ii) or (iii) above), as follows:
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If to Indemnitee: _______________________
_______________________
_______________________
If to i-STAT: i-STAT Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive
Officer
Notices hereunder given as provided above shall be deemed to be duly given upon
delivery if delivered personally, three business days after mailing if by
registered or certified mail, one business day after mailing if by overnight
courier service and upon confirmation of transmission if by telecopy.
13. Governing Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
i-STAT CORPORATION
By:_____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and
Chief Executive Officer
________________________________
Indemnitee
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