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EXHIBIT 10.36
DIRECTOR INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made as of this
____ day of _________, 199_, between i-STAT Corporation, a Delaware corporation
("i-STAT"), and __________________ ("Director").
WITNESSETH THAT:
WHEREAS, Director is a member of the Board of Directors 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 Director continue to serve as a
member of i-STAT's Board of Directors free from undue concern for unpredictable
or unreasonable claims
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for damages by reason of Director's status as a director of i-STAT, by reason of
Director's decisions or actions on its behalf or by reason of Director's
decisions or actions in another capacity while serving as a director of i-STAT;
and
WHEREAS, Director has expressed reluctance to continue to serve
as a member of i-STAT's Board of Directors without assurances that adequate
insurance and indemnification is and will continue to be provided; and
WHEREAS, in order to induce Director to continue to serve as a
member of the Board of Directors of i-STAT, i-STAT has determined and agreed to
enter into this Agreement with Director;
NOW, THEREFORE, in consideration of Director's continued service
as a member of the Board of Directors 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 Director for so long as Director shall continue to serve as a
director of i-STAT and thereafter so long as Director 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 Director was a director 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, Director shall be covered as an insured party in such a manner as to
provide Director the same rights and benefits, subject to the same limitations,
as are accorded to i-STAT's director most favorably insured by such policies.
(d) i-STAT shall give prompt written notice to Director of
any amendment or other change or
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modification, or any proposed amendment, change or modification, to any policy
of directors and officers liability insurance maintained by i-STAT and covering
Director.
2. Indemnification of Director. Subject only to the exclusions
set forth in this Agreement, i-STAT hereby agrees to hold harmless and indemnify
Director 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
Director 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 Director if
Director 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
Director is or was or had agreed to serve as (so long as Director actually is
serving or did so serve) a director of i-STAT, or is or was serving or had
agreed to serve as a director (so long as Director actually is serving or did so
serve) at the request of i-STAT as a director, 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 Director or on Director's behalf in
connection with such action, suit or proceeding, and any appeal therefrom, if
Director acted in good faith and in a manner Director 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 Director'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 Director 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 Director if Director is or was a party or is threatened to be made a
party to any action or
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suit by or in the right of i-STAT by reason of the fact that Director is or was
or had agreed to be (so long as Director actually is or did become) a director
of i-STAT, or is or was serving or had agreed to serve (so long as Director
actually is or did so serve) at the request of i-STAT as a director, 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 Director or on
Director's behalf in connection with the defense or settlement of such action or
suit or any appeal therefrom provided that Director acted in good faith and in a
manner Director 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 Director 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,
Director is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
(c) Successful Defense. To the extent that Director 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 Director
against any and all expenses (including attorneys' fees) actually and reasonably
incurred by Director or on Director'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 Director 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 Director or
on Director'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 Director for the portion thereof to which
Director is entitled.
(e) Advancement of Expenses. All expenses (including
attorney and other expert and professional fees and expenses) incurred by
Director or on Director's behalf
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in defending a civil or criminal action, suit or proceeding, or in enforcing
Director'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.
(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 Director'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 Director'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 Director 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 Director promptly after its adoption.
(g) Indemnification for Expenses as a Witness. To the
extent Director is, by reason of Director's status as a director of i-STAT, a
witness in any proceeding, i-STAT shall indemnify Director 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 Director'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 Director for an accounting of
profits made from the purchase or sale by Director 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;
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(c) on account of the receipt by Director of any personal
profit or advantage to which Director is adjudged in a final, non-appealable
decision not to be entitled;
(d) for expenses incurred by Director, as a plaintiff, in
suits against i-STAT or against other directors of i-STAT (other than suits
brought by Director to enforce Director's rights under any 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 Director 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 Director of
notice of the commencement of any action, suit or proceeding, Director 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 Director 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 Director. i-STAT shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Director, 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 Director or on
Director's behalf in investigating, defending or appealing any action, suit or
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proceeding, whether civil, criminal, administrative or investigative, or in
enforcing Director's rights under any provisions of this Agreement, covered by
Section 2 above shall be paid by i-STAT within 20 days of Director's written
request therefor even if there has been no final disposition of such action,
suit or proceeding. Director's written request shall state the amount requested
and shall be accompanied by copies of the invoices or other relevant
documentation.
(d) Undertaking to Repay Advances. Director agrees that
Director will reimburse i-STAT for all advances paid by i-STAT to Director under
this Agreement in the event and only to the extent that it shall ultimately be
determined that Director 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 Director pursuant to subsection (a)
above, with counsel reasonably satisfactory to Director. After notice from
i-STAT to Director of its election to assume the defense thereof, i-STAT will
not be liable to Director under this Agreement for any legal or other expenses
subsequently incurred by Director; provided, however, that Director shall have
the right to employ Director'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 Director has been authorized by i-STAT, (ii) Director
shall have reasonably concluded that there may be a conflict of interest between
i-STAT and Director 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 Director's counsel shall be subject to
reimbursement in accordance with the terms of this Agreement. i-STAT shall not
be entitled to assume Director's defense of any action, suit or proceeding
brought by i-STAT or as to which Director shall have made the conclusion
provided for in clause (ii) above.
(f) Determination of Right to Entitlement. (i) In the event
that Director 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
Director's written
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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 Director has met the
standard of conduct required to qualify and entitle Director, 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 obtainable a majority of the disinterested directors so directs, by written
opinion of independent legal counsel selected by i-STAT and reasonably
satisfactory to Director, 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 Director or, if
requested by Director, 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 Director, 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 Director or i-STAT in an action to determine Director'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
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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, Director may
within 60 days after a determination adverse to Director has been made as
provided above, or if no determination has been made within 30 business days of
Director'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 whether Director 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,
Director 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 Director brings
suit or takes any other action to enforce Director's rights or to collect monies
due under this Agreement, and if Director is successful therein, i-STAT shall
reimburse (to the extent not previously advanced) Director for all of Director's
reasonable expenses, including attorneys' fees, in any such suit or action.
5. Continuation of Indemnification. i-STAT's obligations to
indemnify Director hereunder shall continue throughout the period Director is a
director 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 Director
shall be subject to any possible claim, action, suit or proceeding by reason of
the fact that Director was a director 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
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(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 Director and Director's heirs, personal representatives, executors
and administrators and shall be binding upon Director and Director'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 Director 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 Director'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.
8. Subrogation. Upon payment of any amount under this Agreement,
i-STAT shall be subrogated to the extent of such payment to all of Director's
rights of recovery therefor and Director 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 Director: _______________________
_______________________
_______________________
If to i-STAT: _______________________
_______________________
_______________________
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.
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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:
________________________________
[Name]
Director
