VISICU, INC. INDEMNIFICATION AGREEMENT
Exhibit 10.5
VISICU, INC.
This Indemnification Agreement (the “Agreement”) is made as of ___, 200_, by and
between Visicu, Inc., a Delaware corporation (the “Company”) and [name of indemnified person]«Name»
(the “Indemnitee”).
A. The Company is aware that competent and experienced persons are increasingly reluctant to
serve as directors, officers, advisors, or agents of corporations unless they are protected by
comprehensive liability insurance or indemnification, due to increased exposure to litigation costs
and risks resulting from their service to such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the compensation of such directors, officers,
advisors, and other agents.
B. The statutes and judicial decisions regarding the duties of directors and officers are
often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such directors,
officers, advisors, and agents with adequate, reliable knowledge of legal risks to which they are
exposed or information regarding the proper course of action to take.
C. Plaintiffs often seek damages in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense and/or settlement of such
litigation is often beyond the personal resources of directors, officers, advisors, and other
agents.
D. The Company believes that it is unfair for its directors, officers, advisors to assume the
risk of huge judgments and other expenses which may occur in cases in which the director, officer,
advisor, or agent received no personal profit and in cases where the director, officer, advisor, or
agent was not culpable.
E. The Company recognizes that the issues in controversy in litigation against a director,
officer, advisor, or agent of a corporation such as the Company are often related to the knowledge,
motives and intent of such director, officer, advisor, or agent, that he is usually the only
witness with knowledge of the essential facts and exculpating circumstances regarding such matters,
and that the long period of time which usually elapses before the trial or other disposition of
such litigation often extends beyond the time that the director, officer, advisor, or agent can
reasonably recall such matters and may extend beyond the normal time for retirement for such
director, officer, advisor, or agent with the result that he, after retirement or in the event of
his death, his spouse, heirs, executors or administrators, may be faced with limited ability and
undue hardship in maintaining an adequate defense, which may discourage such a director, officer,
advisor, or agent from serving in that position.
F. Based upon their experience as business managers, the Board of Directors of the Company has
concluded that, to retain and attract talented and experienced individuals to serve as directors,
officers, advisors, and agents of the Company and to encourage such individuals to take the
business risks necessary for the success of the Company, it is necessary for the Company to
contractually indemnify its directors, officers, advisors, and agents, and to assume for itself
maximum liability for expenses and damages in connection with claims against such directors,
officers, advisors, and agents in connection with their service to the Company, and has further
concluded that the failure to provide such contractual indemnification could result in great harm
to the Company and the Company’s stockholders.
G. Section 145 of the General Corporation Law of Delaware, under which the Company is
organized, empowers the Company to indemnify its directors, officers, employees and agents by
agreement and to indemnify persons who serve, at the request of the Company, as the directors,
officers, employees or agents of other corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not exclusive.
H. The Company’s Certificate of Incorporation (as amended to date) (the “Certificate”) and
By-Laws (as amended to date) (the “By-Laws” and together with the Certificate, the “Charter
Documents”), do not prohibit or restrict contracts between the Company and its directors, officers,
advisors or agents with respect to indemnification of such directors, officers, advisors and
agents.
I. The Company desires and has requested the Indemnitee to serve or continue to serve as a
director, officer, advisor, or agent of the Company and/or one or more subsidiaries of the Company
free from undue concern for claims for damages arising out of or related to such services to the
Company and/or one or more subsidiaries of the Company.
J. Indemnitee is willing to serve, or to continue to serve, the Company, provided that he is
furnished the indemnity provided for herein.
NOW, THEREFORE, to induce the Indemnitee to serve or continue to serve the Company and in
consideration of these premises and the mutual agreements set forth in this Agreement, as well as
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Indemnitee hereby agree as follows:
1. Agreement to Serve. The Indemnitee agrees to serve the Company as a
[director/officer/advisor/agent] at the Company’s will (or under separate agreement, if such
agreement exists), in the capacity in which the Indemnitee has been requested to serve by the
Company, for so long as the Indemnitee is duly appointed or elected and qualified in accordance
with the Charter Documents, or until such time as the Indemnitee tenders the Indemnitee’s
resignation in writing or Indemnitee’s employment contract with the Company, if the same exists,
expires without extension or renewal or is terminated; provided, however, that the
Indemnitee may at any time and for any reason resign from such position, subject to any contractual
obligation that the Indemnitee may have assumed apart from this Agreement; and provided
further, that neither the Company nor any Subsidiary (as defined below) shall have any
obligation under this Agreement to continue the Indemnitee in any such position or at any
particular compensation.
2. Indemnification.
(a) Third Party Proceedings. The Company shall indemnify Indemnitee, to the fullest
extent permitted by law, if Indemnitee is or was a party or is threatened to be made a party to or
is otherwise involved in (including, without limitation, as a witness) any threatened, pending or
completed action, suit, arbitration, or other alternate dispute resolution mechanism, or
investigation, inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether civil, criminal, administrative or investigative, including, without
limitation, any appeal therefrom (collectively, “Proceeding”) (other than a Proceeding by or in the
right of the Company and/or any of its Subsidiaries to procure a judgment in its favor) by reason
of (or arising in part out of) any event or occurrence related to the fact that Indemnitee is or
was a director, officer, employee, advisor, and/or agent of the Company or any Subsidiary, or is or
was serving at the request of the Company as a director, officer, employee, advisor, or agent of
another corporation, partnership, joint venture, trust or other enterprise (collectively,
“Corporate Status”), or by reason of any action alleged to have been taken or omitted on the part
of Indemnitee while serving in such capacity, against all Expenses (as defined below), judgments,
penalties, fines and amounts paid in settlement, including without limitation all interest,
assessments and other charges paid or payable in connection with or in respect of the foregoing,
actually and reasonably
incurred by Indemnitee or on his behalf in connection with such Proceeding or any claim, issue
or matter therein, provided Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company or such
Subsidiary, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe Indemnitee’s conduct was unlawful.
As used herein, (i) “Subsidiary” shall mean any corporation, limited liability company,
partnership, joint venture, trust or other entity of which more than 50% of the outstanding voting
securities are owned directly or indirectly by the Company, by the Company and one or more other
Subsidiaries, or by one or more other Subsidiaries, and (ii) “Expenses” shall mean all reasonable
attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery
service fees, and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or
preparing to be a witness in, or otherwise participating in a Proceeding.
(b) Proceedings by or in the Right of the Company. The Company shall indemnify
Indemnitee, to the fullest extent permitted by law, if, by reason of his Corporate Status, or by
reason of any action alleged to have been taken or omitted on the part of Indemnitee while serving
in such capacity, Indemnitee was or is a party or is threatened to be made a party to or is
otherwise involved in (e.g. as a witness) any threatened, pending or completed Proceeding brought
by or in the right of the Company or any Subsidiary to procure a judgment in its favor, against all
Expenses, and, to the extent permitted by law, amounts paid in settlement, including without
limitation all interest, assessments and other charges paid or payable in connection with or in
respect of the foregoing, actually and reasonably incurred by Indemnitee or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, provided Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or such Subsidiary, except that, if applicable law so provides, no such
indemnification shall be made under this Section 2(b) in respect of any Proceeding, claim, issue or
matter as to which Indemnitee shall have been finally adjudicated by court orders or judgment to be
liable to the Company or such Subsidiary, unless and only to the extent that the Delaware Court of
Chancery or any other court in which such Proceeding is or 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 reasonable Expenses and
other amounts as the Court of Chancery or other such court shall deem proper.
(c) Mandatory Payment of Expenses. 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 referred to in Section 2(a) or Section 2(b) above, or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee in connection therewith. Without limiting the generality of the
foregoing, if any Proceeding is disposed of, on the merits or otherwise (including a disposition
without prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Company, (iii) a plea of guilty or nolo
contendere by the Indemnitee, (iv) an adjudication that the Indemnitee did not act in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company, and (v) with respect to any criminal action or proceeding, an adjudication that the
Indemnitee had reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purpose hereof to have been wholly successful with respect thereto. If
Indemnitee is not wholly successful in defense of such Proceeding but is successful, on the merits
or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or
on his behalf in connection with each successfully resolved claim, issue or matter.
(d) Advancement of Expenses. The Company shall advance, without duplication, all
Expenses actually and reasonably incurred by or on behalf of Indemnitee in connection with any
Proceeding referenced in Section 2(a) or 2(b) above (including, without limitation, retainers and
prepaid, deposited or escrowed amounts), in the event of the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances from time to time. Such
statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall
include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. All such undertakings shall be unsecured, shall bear no interest
and shall be accepted without reference to the financial ability of the Indemnitee to make
repayment.
(e) Security. To the extent requested by the Indemnitee and approved by the Company’s
Board of Directors, the Company may at any time and from time to time provide security to the
Indemnitee for the Company’s obligations hereunder through an irrevocable bank letter of credit,
funded trust or other collateral. Any such security, once provided to the Indemnitee, may not be
revoked or released without the prior written consent of Indemnitee.
3. Notice of Proceeding and Review of Indemnification Request.
(a) Notice. Indemnitee shall give the Company notice in writing, as soon as
practicable, of any Proceeding for which Indemnitee expects to or will seek indemnification under
this Agreement. Such notice shall include a written request for indemnification, and shall be
accompanied by a copy of any summons, citation, subpoena, complaint, indictment, investigation,
and/or inquiry received by Indemnitee, as well as any other documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification. Indemnitee shall direct such notice, request and
documentation to the Chief Executive Officer of the Company at the address shown in the notices
section of this Agreement. Notwithstanding the foregoing, any failure of Indemnitee to provide
such notice to the Company shall not relieve the Company of any liability that it may have to
Indemnitee unless and to the extent such failure materially prejudices the interests of the
Company.
(b) Assumption of Defense and Selection of Counsel; Settlement. With respect to any
Proceeding of which the Company is notified under the preceding Section 3(a), the Company shall be
entitled to participate therein at its own expense and/or, if appropriate, to assume the defense
thereof at its own expense, with legal counsel approved by Indemnitee, which approval shall not be
unreasonably withheld, upon the delivery to Indemnitee of written notice of its election to do so,
in which case Indemnitee shall provide the Company such information and cooperation as the Company
may reasonably require in connection with such defense and as shall be within Indemnitee’s power to
so provide. After delivery of such notice from the Company to the Indemnitee of its intention to
assume the defense of the Proceeding, Indemnitee’s approval of Company counsel, and the retention
of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement
for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to such
Proceeding, other than as provided below. The Indemnitee shall have the right to employ his own
counsel in connection with such Proceeding, but the fees and expenses of such counsel incurred
after such notice, approval and retention shall be at the expense of the Indemnitee, unless (i) the
employment of counsel by the Indemnitee has been authorized by the Company, (ii) counsel to the
Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on
any significant issue between the Company and the Indemnitee in the conduct of the defense of such
action or (iii) the Company shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel for the Indemnitee shall be at the
expense of the Company, except as otherwise expressly provided by this Agreement. The Company
shall not be entitled, without the consent of the Indemnitee,
to assume the defense of any claim brought by or in the right of the Company or as to which
counsel for the Indemnitee shall have reasonably made the conclusion provided for in clause (ii)
above. Notwithstanding any of the foregoing, the Company shall not be permitted to settle any
Proceeding, or any claim, issue or matter therein, on behalf of the Indemnitee, without the prior
written consent of Indemnitee, unless (A) the Company assumes full and sole responsibility for such
settlement, (B) such settlement does not contain any admission of guilt by, on behalf or, or with
respect to Indemnitee, (C) such settlement does not contain and will not result in any penalty or
sanction of Indemnitee, and (D) such settlement grants the Indemnitee a complete and unqualified
release in respect of any potential or resulting liability of Indemnitee, in law and in equity, or
Indemnitee is otherwise fully indemnified against all such liability.
(c) Payment; Procedure for Review; Reviewing Party. Any indemnification and Expense
advances provided for in Section 2 and this Section 3 shall be made by the Company promptly, and in
any event within forty-five (45) days after receipt by the Company of the applicable written
request of the Indemnitee, except that Expense advances pursuant to Section 2(d) shall be made no
later than ten (10) days after such receipt (each, a “Payment Period”), unless in any case with
respect to such requests the Company determines, by clear and convincing evidence, prior to
expiration of the applicable Payment Period that the Indemnitee did not meet the applicable
standard of conduct for indemnification set forth in this Agreement. The Company’s determination
as to whether the Indemnitee meets the applicable standard of conduct shall be made, within the
applicable Payment Period, as follows: (i) if a Change in Control shall have occurred (other than a
Change in Control which has been approved by a majority of the Company’s Board of Directors who
were directors immediately prior to such Change in Control), then, with respect to all matters
thereafter arising concerning the rights of Indemnitee to indemnification under this Agreement or
any other agreement, or under the Company’s Charter Documents, the Company’s determination shall be
made by Independent Legal Counsel (as defined below), in a written legal opinion to Company and
Indemnitee, such Independent Legal Counsel to be selected in accordance with the procedures set
forth in Section 3(d) below; or (ii) if a Change in Control shall not have occurred (or if a Change
in Control occurred but was approved by a majority of the Company’s Board of Directors who were
directors immediately prior to such Change in Control), the Company’s determination shall be made,
at the election of the Board of Directors, by: (A) a majority vote of the directors of the Company
who are not at that time parties to the Proceeding in question (“Disinterested Directors”), even
though less than a quorum of the Board; or (B) a committee of such Disinterested Directors
designated by majority vote of such Disinterested Directors, even though less than a quorum of the
Board; or (C) if there are no such Disinterested Directors, or if such Disinterested Directors so
direct, by Independent Legal Counsel in a written opinion to the Company, a copy of which shall be
promptly delivered to the Indemnitee (the party making the determination in accordance with the
foregoing as to whether the Indemnitee meets the applicable standard of conduct being referred to
herein as the “Reviewing Party”).
“Change in Control” means the occurrence after the date of this Agreement of any of the
following: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Act”)), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company acting in such capacity or a corporation
owned directly or indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, becomes the “beneficial owner” (as defined
in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 20%
or more of the total voting power represented by the Company’s then outstanding voting securities;
(ii) during any period of two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Company cease to be a majority thereof (otherwise than
through death, disability or retirement in accordance with the Company’s normal retirement
policies); (iii) the stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, limited liability company, partnership, joint venture, trust or other
entity other than a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately after such a merger or consolidation;
or (iv) the stockholders of the Company approve a plan of complete or substantial liquidation of
the Company or an agreement for the sale or disposition by the Company of (in one transaction or a
series of related transactions) all or substantially all of the Company’s assets.
“Independent Legal Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the past five years has
been, retained to represent: (i) the Company or Indemnitee in any matter material to either such
party (other than with respect to matters concerning the Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term Independent Legal 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.
(d) Procedure for Selecting of Independent Legal Counsel. Whenever pursuant to this
Agreement Independent Legal Counsel is to be selected for purposes of determining Indemnitee’s
entitlement to indemnification, such selection shall be made in accordance with the provisions of
this Section 3(d). If a Change in Control shall not have occurred, the Independent Counsel shall
be selected by the Board, and the Company shall give written notice to Indemnitee advising him of
the identity of the Independent Counsel so selected. If a Change in Control shall have occurred
(for which Independent Counsel is to be selected in accordance with Section 3(c)), the Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be
made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such
written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the
case may be, a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet
the requirements of “Independent Counsel” as defined above, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Legal Counsel. If a written objection is made and
substantiated, the Independent Legal Counsel selected may not serve as Independent Legal Counsel
unless and until such objection is withdrawn or a court has determined that such objection is
without merit. If, within 5 business days after submission by Indemnitee of a written request for
indemnification pursuant to Section 3(a) hereof which is to be addressed by Independent Legal
Counsel in accordance with the foregoing provisions, no Independent Legal Counsel shall have been
selected and not objected to, either the Company or Indemnitee, as the case may be, may petition
the Court of Chancery of the State of Delaware for resolution of any objection which shall have
been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for
the appointment as Independent Counsel of a person selected by the Court or by such other person as
the Court shall designate, and the person with respect to whom all objections are so resolved or
the person so appointed shall act as Independent Counsel under Section 3(d) hereof. The Company
agrees to abide by the opinion of Independent Legal Counsel and to pay any and all reasonable fees
and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting
pursuant to this Agreement, including, without limitation, paying all reasonable fees and expenses
incident to the procedures of this Section 3(d), regardless of the manner in which such Independent
Counsel was selected or appointed. Notwithstanding any other provision of this Agreement, the
Company shall not be required to pay Expenses of more than one Independent Legal Counsel in
connection with all matters concerning a single Indemnitee, and such
Independent Legal Counsel shall be the Independent Legal Counsel for any or all other
Indemnitees unless (i) the employment of separate counsel by one or more Indemnitees has been
previously authorized by the Company in writing, or (ii) an Indemnitee shall have provided to the
Company a written statement that such Indemnitee has reasonably concluded that there may be a
conflict of interest between such Indemnitee and the other Indemnitees with respect to the matters
arising under this Agreement.
(e) Notice to Insurers. If, at the time of the receipt by the Company of a notice of
a Proceeding pursuant to Section 3(a) hereof, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the commencement, or the threat of the
commencement, of such Proceeding to the insurers in accordance with the procedures set forth in the
respective applicable insurance policies. The Company shall thereafter take all necessary action
to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies; provided that no such payments by such
insurers shall relieve the Company of any liability or obligation which it may have to the
Indemnitee except as and to the extent expressly provided under this Agreement.
4. Indemnitee’s Right to Enforce Indemnification Provisions; Presumptions and Burden of
Proof; Expenses of Enforcement.
(a) Right to Enforce Indemnification. If the Company denies Indemnitee’s request for
indemnification or Expense advances provided for in this Agreement, in whole or in part, or if
disposition and payment thereof is otherwise not made within the applicable Payment Period(s), the
right to such indemnification or Expense advances shall be enforceable by the Indemnitee in the
Delaware Court of Chancery or any other court of competent jurisdiction.
(b) Presumptions; Burden of Proof. For purposes of this Agreement, the termination of
any Proceeding by judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption
that Indemnitee did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by this Agreement or applicable
law. In addition, neither the failure of any Reviewing Party to have made a determination as to
whether an Indemnitee has met any particular standard of conduct or had any particular belief, nor
an actual determination by any Reviewing Party that an Indemnitee has not met such standard of
conduct or did not have such belief, prior to the commencement of legal proceedings by such
Indemnitee to secure a judicial determination that such Indemnitee should be indemnified under this
Agreement or applicable law, shall be a defense to such Indemnitee’s claim or create a presumption
that such Indemnitee has not met any particular standard of conduct or did not have any particular
belief. For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action is based on the records or books of account of the Company or
relevant Subsidiary, including financial statements, or on information supplied to Indemnitee by
the officers of the Company or relevant Subsidiary in the course of their duties, or on the advice
of legal counsel for the Company or relevant Subsidiary, by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by the Company or
relevant Subsidiary. The knowledge and/or actions, or failure to act, of any other director,
officer, advisor, agent or employee of the Company or any of its Subsidiaries shall not be imputed
to Indemnitee for purposes of determining the right to indemnification under this Agreement. The
provisions of this Section 4(b) shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
(c) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 4 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court that the Company is bound
by all the provisions of this Agreement.
(d) In the event that a determination shall have been made pursuant to Section 3(c) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section 4 shall be conducted in all respects as a de novo trial, on the merits,
and Indemnitee shall not be prejudiced by reason of that adverse determination.
(e) Expenses of Enforcing Indemnification. In the event that any action is instituted
by or in the name of Indemnitee or the Company under this Agreement or under any liability
insurance policies maintained by the Company to enforce or interpret any of the terms hereof or
thereof, Indemnitee shall be entitled to be indemnified for all Expenses incurred by Indemnitee
with respect to such action, regardless of whether Indemnitee is ultimately successful in such
action, and shall be entitled to the advancement of Expenses with respect to such action pursuant
to comparable procedures as those set forth in Section 2(d) above with respect to advancement of
Expenses for indemnification claims under Sections 2(a) and 2(b), unless as a part of such action a
court having jurisdiction over such action makes a final judicial determination (as to which all
rights of appeal therefrom have been exhausted or lapsed) that each of the material assertions made
by Indemnitee as a basis for such action was not made in good faith or was frivolous.
5. Additional Indemnification Rights.
(a) Scope. Notwithstanding any other provision of this Agreement, the Company hereby
agrees to indemnify the Indemnitee to the fullest extent permitted by law, notwithstanding that
such indemnification is not specifically authorized by the other provisions of this Agreement, the
Company’s Charter Documents or by statute. In the event of any change, after the date of this
Agreement, in any applicable law, statute, or rule which expands the right of a Delaware
corporation to indemnify a member of its Board of Directors, an officer, an advisor, or an agent,
such changes shall be, ipso facto, within the purview of Indemnitee’s rights and the Company’s
obligations under this Agreement. In the event of any change in any applicable law, statute or
rule which narrows the right of a Delaware corporation to indemnify a member of its Board of
Directors or an officer, such changes, to the extent not otherwise required by such law, statute or
rule to be applied to this Agreement shall have no effect on this Agreement or the parties’ rights
and obligations hereunder.
(b) Nonexclusivity; Effectiveness; Survival of Rights. The indemnification provided
by this Agreement shall not be deemed exclusive of any rights to which Indemnitee may be entitled
under the Company’s Charter Documents, any other agreement, any vote of stockholders or directors,
the DGCL or other applicable law, or otherwise, both as to action taken or omitted in Indemnitee’s
official capacity and as to action taken or omitted in another capacity while holding such office.
This Agreement shall be effective as of the date set forth on the first page and shall apply to
acts or omissions of Indemnitee that occurred prior to, on, and/or after such date,
provided that Indemnitee was serving in an indemnified capacity at the time such act or
omission occurred. Without limiting the generality of the foregoing, the indemnification provided
under this Agreement shall continue as to Indemnitee for any action taken or not taken while
serving in an indemnified capacity even though he or she may have ceased to serve in any such
capacity at the time of the applicable action, suit or other covered Proceeding.
(c) Company Amendments. The Company shall not adopt any amendment to the Company’s
Charter Documents, the effect of which would be to deny, diminish or encumber the Indemnitee’s
rights to indemnity pursuant to this Agreement, the Charter Documents, 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 upon which the amendment was approved by the Board of Directors or the stockholders, as the
case may
be. Without limiting the generality of the foregoing, all rights and obligations of the Company
and the Indemnitee hereunder shall continue in full force and effect despite the subsequent
amendment or modification of the Company’s Charter Documents, as such are in effect on the date
hereof, and such rights and obligations shall not be affected by any such amendment or
modification, any resolution of Directors or stockholders of the Company, or by any other corporate
action which conflicts with or purports to amend, modify, limit or eliminate any of the rights or
obligations of the Company or the Indemnitee hereunder.
6. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses, judgments,
penalties, fines and amounts paid in settlement (including without limitation all interest,
assessments and other charges paid or payable in connection with or in respect of such Expenses,
judgments, penalties, fines and amounts paid in settlement) actually and reasonably incurred by him
or on his behalf in connection with such Proceeding or any claim, issue or matter therein, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion to which Indemnitee is entitled.
7. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to Indemnitee
with respect to any Proceedings initiated or brought voluntarily by Indemnitee and not by way of
defense, counterclaim or crossclaim, except (i) to the extent not otherwise prohibited by this
Agreement, with respect to Proceedings brought to establish or enforce a right to indemnification
under this Agreement or any other agreement or insurance policy or under the Company’s Charter
Documents or any applicable statute or other law, (ii) in specific cases if the Board of Directors
has approved the initiation or bringing of such Proceeding, or (iii) as otherwise required under
Section 145 of the Delaware General Corporation Law, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, or insurance recovery, as the case may be; or
(b) Lack of Good Faith. To indemnify Indemnitee with respect to any Proceedings
instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by Indemnitee in such Proceeding
was not made in good faith or was frivolous; or
(c) Insured Claims. To indemnify Indemnitee for Expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, penalties, and amounts paid in
settlement) to the extent such Expenses or liabilities have been paid directly to Indemnitee by an
insurance carrier under a policy of insurance; or
(d) Claims under Section 16(b). To indemnify Indemnitee for the payment of profits
inuring to and recoverable by the Company pursuant to Section 16(b) of the Securities Exchange Act
of 1934, as amended, or any similar successor statute, and any Expenses incurred with respect
thereto; or
(e) Other Court Determinations. To indemnify Indemnitee for any acts or omissions, or
transactions, from which a court of competent jurisdiction finally determines an officer or
director, as applicable, may not be relieved of liability under applicable law or pertinent public
policy; or
(f) Fraud. To indemnify Indemnitee if a court of competent jurisdiction finally
determines that Indemnitee has committed fraud on the Company.
8. Contribution. If the indemnification provided for in Section 2 above is unavailable
for any reason other than the statutory limitations set forth in the DGCL, then in respect of any
claim, incident or other Proceeding in which the Company is jointly liable with the Indemnitee (or
would be if joined in such claim, incident or other Proceeding) the Company shall contribute to the
amount of the Indemnitee’s Expenses in such proportion as is appropriate to reflect (a) the
relative benefits received by the Company on the one hand and by the Indemnitee on the other hand
from the transaction from which such claim, incident or Proceeding arose, and (b) the relative
fault of the Company on the one hand and of the Indemnitee on the other hand in connection with the
events which resulted in such Expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the Indemnitee on the other shall be
determined by reference to, among other things, the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in such Expenses. The
Company agrees that it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata or per capita allocation or any other method of allocation which does
not take account of the equitable considerations referred to in the immediately preceding sentence.
The foregoing provisions notwithstanding, no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not found guilty of such fraudulent misrepresentation.
9. Mutual Acknowledgement regarding Public Policy. Both the Company and Indemnitee
acknowledge that in certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors and officers under this Agreement or otherwise. Indemnitee
understands and acknowledges that the Company has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of indemnification to
a court in certain circumstances for a determination of the Company’s right under public policy to
indemnify Indemnitee.
10. Director and Officer Liability Insurance. The Company hereby covenants and agrees
that, so long as the Indemnitee shall continue to serve as a director, officer, employee, advisor,
or agent of the Company or any Subsidiary and thereafter so long as the Indemnitee shall be subject
to any possible Proceeding by reason of the fact that the Indemnitee was a director, officer,
employee, advisor, or agent of the Company or any Subsidiary, the Company shall promptly obtain and
maintain in full force and effect a policy or policies of insurance with reputable insurance
companies providing the officers and directors of the Company with coverage for losses from
wrongful acts, and to ensure the Company’s performance of its indemnification obligations under
this Agreement. To the extent possible, such policy or policies shall be structured so as to best
ensure that such coverage shall survive intact any bankruptcy, insolvency, or similar proceeding or
condition involving the Company. In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide Indemnitee the same rights
and benefits as are accorded to the most favorably insured of the Company’s directors, if
Indemnitee is a director of the Company or a Subsidiary; or of the Company’s officers, if
Indemnitee is not a director of the Company or a Subsidiary but is an officer thereof.
Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not reasonably available,
if the premium costs for such insurance are disproportionate to the amount of coverage provided, if
the coverage provided by such insurance is limited by exclusions so as to provide an insufficient
benefit, or if Indemnitee is covered by similar insurance maintained by a Subsidiary or parent of
the Company. The Company shall promptly notify Indemnitee of any good faith determination not to
provide such coverage.
11. No Duplication of Payments. Notwithstanding any provision in this Agreement to
the contrary, the Company shall not be liable under this Agreement to make any payment in
connection with any Proceeding against Indemnitee to the extent such Indemnitee has actually
received payment (under any insurance policy, provision of the Charter Documents or otherwise) of
the amounts otherwise
indemnifiable hereunder. In the event the Company makes any indemnification payments to
Indemnitee and Indemnitee later receives payments from the proceeds of insurance covering the same
Expenses, judgments, fines, penalties or amounts paid in settlement so indemnified by the Company,
Indemnitee shall promptly refund such indemnification payments to the Company to the extent of such
insurance reimbursement.
12. Miscellaneous.
(a) Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to principles of conflict
of law.
(b) Consent to Jurisdiction. The Company and the Indemnitee each hereby irrevocably
consent to the exclusive jurisdiction of the Court of Chancery of Delaware for any purpose in
connection with any actions or proceedings that arise out of or relate to this Agreement.
(c) Entire Agreement; Amendments; Enforcement of Rights. This Agreement sets forth
the entire agreement and understanding of the parties relating to the subject matter herein and
merges all prior discussions between them. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, shall be effective unless in writing signed by
Indemnitee and an authorized officer of the Company who is not Indemnitee. No amendment, alteration
or repeal of this Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. The failure by either party to
enforce any rights under this Agreement shall not be construed as a waiver of any rights of such
party.
(d) Construction of Ambiguities. This Agreement is the result of negotiations
between, and has been reviewed by, each of the parties hereto and their respective counsel, if any;
accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no
ambiguity shall be construed in favor of or against any one of the parties hereto.
(e) Notices. All notices, request, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given (i) upon delivery, if delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed,
(ii) on the first business day after the date on which it is mailed by overnight courier service,
(iii) on the date of transmission, if transmitted via facsimile or (iv) on the third business day
after the date on which it is mailed by certified or registered mail with postage prepaid:
(i) If to Indemnitee, at the address specified on the signature page of his Agreement; and
(ii) If to the Company to:
Visicu, Inc.
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Attention: Chief Financial Officer
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Attention: Chief Financial Officer
with a copy to:
DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or to such other address as may have been furnished in writing to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.
(f) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
(g) Successors And Assigns. This Agreement shall be binding upon the Company and its
successors and assigns, including without limitation any direct or indirect successor by purchase,
merger, consolidation or otherwise to all, substantially all or a substantial part of the business
or assets of the Company. This Agreement shall inure to the benefit of Indemnitee and Indemnitee’s
heirs, legal representatives, executives and administrators. The Company shall require and cause
any successor (whether direct or indirect, and whether by purchase, merger, consolidation or
otherwise) to all, substantially all or a substantial part of the business or assets of the
Company, by written agreement in form and substance satisfactory to the Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
(h) Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all documents required and shall do all acts that may be necessary to secure such rights
and to enable the Company to effectively bring suit to enforce such rights.
(i) Company Acknowledgement regarding Consideration. The Company expressly confirms
and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby
in order to induce Indemnitee to serve as a director, officer, employee, advisor, and/or agent of
the Company and/or any of its Subsidiaries, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving in such capacity.
(j) Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; (b) such provision or provisions shall be deemed reformed to the
extent necessary to conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested thereby. Without
limiting the generality of the foregoing, if this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the fullest extent permitted by any applicable portion of this
Agreement that shall not have been invalidated, and the balance of this Agreement not so
invalidated shall be enforceable in accordance with its terms.
(k) Construction of Certain Phrases.
(i) For purposes of this Agreement, references to the “Company” shall include, in addition to
Visicu, Inc., any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which Visicu, Inc. (or any of its
Subsidiaries) is a party which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that if Indemnitee is
or was a director, officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, Indemnitee shall stand in the
same position under the provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent corporation if its separate
existence had continued.
(ii) For purposes of this Agreement, without limitation, references to “other enterprises”
shall include employee benefit plans; references to “fines” shall include any excise taxes assessed
on Indemnitee with respect to an employee benefit plan; and references to “serving at the request
of the Company” shall include any service as a director, officer, employee, advisor or agent of the
Company or any Subsidiary, which imposes any duties on, or involves services by Indemnitee with
respect to an employee benefit plan, its participants, or beneficiaries.
(l) Company Compliance with Law. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in violation of applicable
law. The Company’s inability, pursuant to court order, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
COMPANY
VISICU, INC.
By: |
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Print Name: |
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Title: |
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INDEMNITEE
Signed: |
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Address: |
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