INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is made and entered into as
of this ____ day of ______, 2005, by and between ORTHOFIX INTERNATIONAL N.V., a
Netherlands Antilles corporation (the "Company"), and the undersigned
Indemnitee.
W I T N E S S E T H:
WHEREAS, the Company and the Indemnitee recognize that the vagaries of
public policy and the interpretation of sometimes ambiguous statutes,
regulations and court opinions are too uncertain to provide the Company's
directors and officers with adequate or reliable advance knowledge or guidance
with respect to the legal risks and potential liabilities to which they may
become personally exposed as a result of performing their duties for the Company
or by reason of their status as a director or officer of the Company;
WHEREAS, in entering into this Agreement both the Company and the
Indemnitee represent and agree, to the best of their knowledge, that at present
there is no pending or threatened litigation or proceeding involving the
Indemnitee or any other director or officer of the Company, where
indemnification under this Agreement would be required or permitted or which may
result in a claim for indemnification hereunder; and
WHEREAS, the Company desires to have the Indemnitee begin or continue
to serve as a director or officer of the Company or an Affiliate (as defined
below), free from undue concern for unpredictable, inappropriate or unreasonable
legal risks and personal liabilities by reason of performing his duty to the
Company or his status as a director or officer; and the Indemnitee desires to
begin or continue to serve in such capacity.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements of the parties contained herein and the mutual benefits to be derived
from this Agreement, the parties hereto covenant and agree as follows:
1. Certain Definitions. The following terms as used in this Agreement
shall be defined as follows:
(a) "Action(s)" shall include, without limitation, any threatened,
pending or completed action, claim, litigation, suit or proceeding, whether
civil, criminal, administrative, arbitrative or investigative, predicated on any
applicable law of any jurisdiction, including, without limitation, the U.S.
federal Securities Act of 1933, as amended, and/or Securities Exchange Act of
1934, as amended, and/or their respective state counterparts and/or any rule or
regulation promulgated thereunder, whether a Derivative Action and/or whether
formal or informal.
(b) "Affiliate" shall include, without limitation, any corporation,
partnership, joint venture, employee benefit plan, trust, or other similar
enterprise that directly or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the Company.
(c) "Authority" shall mean the panel of arbitrators or independent
legal counsel selected under Section 6.
(d) "Board" shall mean the entire then serving Board of Directors of
the Company.
(e) "Breach of Duty" shall mean Indemnitee breached or failed to
perform his duties to the Company or an Affiliate, as the case may be, and
Indemnitee's breach of or failure to perform those duties constituted:
(i) a breach of his "duty of loyalty" (as defined herein) to the
Company or its shareholders;
(ii) acts or omissions not in "good faith" (as further defined
herein) or which involve intentional misconduct or a knowing violation of
the law; or
(iii) a transaction from which Indemnitee derived an improper
direct personal financial profit (unless such profit is determined to be
immaterial in light of all the circumstances).
In determining whether Indemnitee has acted or omitted to act otherwise
than in "good faith," as such term is used herein, the Authority, or the
court, shall determine solely whether Indemnitee (i) in the case of conduct
in his "official capacity" (as defined herein) with the Company, believed,
in the exercise of his business judgment, that his conduct was in the best
interests of the Company; and (ii) in all other cases, reasonably believed
that his conduct was at least not opposed to the best interests of the
Company. Notwithstanding any other provision of this Agreement,
Indemnitee's conduct with respect to an employee benefit plan or trust
sponsored by or otherwise associated with the Company and/or an Affiliate
for a purpose he reasonably believes to be in the interests of the
participants in and beneficiaries of such plan is conduct that does not
constitute a breach or failure to perform his duties to the Company or an
Affiliate, as the case may be.
(f) "Derivative Action" shall mean any Action brought by or in the
right of the Company and/or an Affiliate.
(g) "Disinterested Quorum" shall mean a quorum of the Board who are not
parties in interest to the subject Action or any related Action.
(h) Breach of the "duty of loyalty" shall mean a breach of fiduciary
duty by an Executive which constitutes a willful failure to deal fairly with the
Company or its shareholders in connection with a transaction in which the
Executive has a material undisclosed personal conflict of interest.
(i) "Executive(s)" shall mean any individual who is, was or has agreed
to become a director and/or officer of the Company and/or an Affiliate.
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(j) "Expenses" shall include, without limitation, any and all
reasonable expenses, fees, costs, charges, attorneys' fees and disbursements,
other out-of-pocket costs, reasonable compensation for time spent by Indemnitee
in connection with the Action for which he or she is not otherwise compensated
by the Company, any Affiliate, any third party or other entity and any and all
other reasonable direct and indirect costs of any type or nature whatsoever.
(k) "Liabilities" shall include, without limitation, judgments, amounts
incurred in settlement, fines, penalties and, with respect to any employee
benefit plan, any excise tax or penalty incurred in connection therewith, all
Expenses and any and all other reasonable liabilities of every type or nature
whatsoever incurred in connection with the subject Action.
(l) "Official capacity" shall mean the office of director or officer in
the Company, membership on any committee of directors, any other offices in the
Company held by an Executive and any other employment or agency relationship
between the Executive and the Company. Without limiting the generality of the
foregoing, the provision of legal advice to the Company, the Board, or the
officers, employees and agents of the Company by an Executive whose duties
include legal counsel shall be deemed to be within such Executive's "official
capacity."
2. Agreement to Serve. The Indemnitee agrees to begin or to continue to
serve the Company or an "Affiliate," as an Executive; provided, however, that
nothing contained in this Agreement shall create a contract of employment
between the Company and the Indemnitee and the termination of the Indemnitee's
relationship with the Company by either party hereto shall not be restricted by
this Agreement.
3. General. The Company shall indemnify Indemnitee, to the fullest
extent permitted by law, against any and all Liabilities which Indemnitee may
incur as a result of being made or threatened to be made a party to any Action
by reason of the fact that Indemnitee, or his testator or intestate, is or was a
director or officer of the Company or serves or served any other enterprise as a
director or officer at the request of the Company or any predecessor of the
Company. The remaining specific provisions of this Agreement are in furtherance,
and not in derogation or limitation of, the generality of the foregoing.
4. Mandatory Indemnification.
(a) Mandatory Indemnification when Successful on Merits or Otherwise.
With respect to any Action to which Indemnitee has been made or threatened to be
made a party by reason of his status as an Executive, and/or as to acts
performed in the course of Indemnitee's duties to the Company and/or an
Affiliate, to the extent Indemnitee has been successful on the merits or
otherwise, including, without limitation, the settlement, dismissal, abandonment
or withdrawal of any such Action where Indemnitee does not pay, incur or assume
any material Liabilities, he shall be indemnified by the Company against all
Liabilities incurred by him or on his behalf in connection therewith. The
Company shall pay or reimburse such Liabilities to Indemnitee, or to such other
person or entity as Indemnitee may designate in writing to the Company, within
ten days after the receipt of Indemnitee's written request therefor, without
regard to the provisions of Section 6. In the event the Company refuses or fails
to pay or
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reimburse such requested Liabilities, Indemnitee may petition a court to order
the Company to make such payment pursuant to Section 7.
(b) Mandatory Indemnification in Other Situations. In all cases other
than those set forth in Section 4(a) hereof, and subject to the conditions and
limitations set forth hereinafter in this Agreement, the Company shall indemnify
and hold harmless Indemnitee in any circumstances in which he is or was a party,
or is threatened to be made a party, to any Action by reason of his status as an
Executive, and/or as to acts performed in the course of Indemnitee's duties to
the Company and/or an Affiliate, against Liabilities incurred by or on behalf of
Indemnitee in connection with any Action, including, without limitation, in
connection with the investigation, defense, settlement or appeal of any Action;
provided, that it is not determined by the Authority, or by a court, pursuant to
Section 6 that Indemnitee engaged in misconduct which constitutes a Breach of
Duty.
(c) Restrictions on Indemnification. Notwithstanding any other
provision contained in this Agreement to the contrary, the Company shall not:
(i) indemnify against Liabilities (or advance Expenses) to
Indemnitee with respect to any Action initiated or brought voluntarily by
Indemnitee and not by way of defense, except with respect to Actions:
(1) brought to establish or enforce a right to indemnification
against Liabilities (or an advance of Expenses) under Section 7, or
under any applicable statute or law;
(2) initiated or brought voluntarily by Indemnitee to the
extent Indemnitee is successful on the merits or otherwise in
connection with such an Action; or
(3) as to which the Board determines it be appropriate.
(ii) indemnify Indemnitee against judgments, fines or penalties
incurred in a Derivative Action if Indemnitee is finally adjudged liable to
the Company by a court (unless the court before which such Derivative
Action was brought determines that Indemnitee is fairly and reasonably
entitled to indemnity for any or all of such judgments, fines or
penalties); or
(iii) indemnify Indemnitee under this Article 11 for any amounts
paid in settlement of any Action effected without the Company's written
consent.
(d) Settlement of Action. The Company shall not settle any Action in
any manner which would impose any Liabilities or other type of limitation on
Indemnitee without the Indemnitee's written consent. Neither the Company nor
Indemnitee shall unreasonably withhold their consent to any such proposed
settlement.
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5. Advance for Expenses. The Company shall from time to time pay to or
reimburse Indemnitee, or such other person or entity as Indemnitee may designate
in writing to the Company, Expenses incurred by or on behalf of Indemnitee in
connection with any Action in advance of the final disposition or conclusion of
any such Action within ten days after the receipt of Indemnitee's written
request therefor; provided, that Indemnitee furnishes to the Company an executed
written certificate affirming his good faith belief that he has not engaged in
misconduct which constitutes a Breach of Duty and agrees in writing to repay any
advances made under this Section 5 if it is ultimately determined that he is not
entitled to be indemnified by the Company for such Expenses pursuant to this
Agreement.
6. Determination of Right to Indemnification.
(a) Payment. Except as otherwise set forth in this Section 6 or in
Section 4(c), any indemnification to be provided to Indemnitee by the Company
under Section 4(b) upon the final disposition or conclusion of any Action,
unless otherwise ordered by a court, shall be paid or reimbursed by the Company
to Indemnitee, or such other person or entity as Indemnitee may designate in
writing to the Company, within sixty days after the receipt of Indemnitee's
written request therefor. Such request shall include an accounting of all
Liabilities for which indemnification is being sought. No further corporate
authorization for such payment shall be required other than this Section 6(a).
(b) Restrictions on Payment. Notwithstanding the foregoing, the payment
of such requested indemnifiable Liabilities pursuant to Section 4(b) may be
denied by the Company if:
(i) a Disinterested Quorum, by a majority vote thereof, determines
that Indemnitee has engaged in misconduct which constitutes a Breach of
Duty; or
(ii) a Disinterested Quorum cannot be obtained.
(c) Authorization of Authority to Determine Right to Indemnification.
In the event of nonpayment pursuant to either subsection of Section 6(b), the
Board shall immediately authorize and direct, by resolution, that an independent
determination be made as to whether Indemnitee has engaged in misconduct which
constitutes a Breach of Duty and, therefore, whether indemnification of
Indemnitee is proper pursuant to this Agreement. If the Board does not authorize
an Authority to determine the Indemnitee's right to indemnification hereunder
within such sixty-day period and/or if indemnification of the requested amount
of Liabilities is paid by the Company, then it shall be conclusively presumed
for all purposes that a Disinterested Quorum has affirmatively determined that
Indemnitee did not engage in misconduct constituting a Breach of Duty and, if
not already so paid, indemnification by the Company of the requested amount of
Liabilities shall be paid to Indemnitee immediately.
(d) Choice of Authority. Such independent determination shall be made,
at the option of Indemnitee, by (i) a panel of three arbitrators as set forth
below in Section 6(f); (ii) an independent legal counsel mutually selected by
Indemnitee and a Disinterested Quorum (or
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by the Board if a Disinterested Quorum cannot be obtained) by a majority vote
thereof; or (iii) a court in accordance with Section 7.
(e) Rebuttable Presumption and Burden of Proof. In any such
determination there shall exist a rebuttable presumption that the Indemnitee has
not engaged in misconduct which constitutes a Breach of Duty and is, therefore,
entitled to indemnification hereunder. The burden of rebutting such presumption
by clear and convincing evidence shall be on the Company or on such other party
challenging the payment of such indemnification.
(f) Arbitration Panel. If the Indemnitee chooses for a matter hereunder
to be heard by a panel of arbitrators as provided in clause (i) of Section 6(d),
then the Indemnitee shall specify in writing his or her choice of the following
bodies, rules and venues:
(i)Arbitration by a panel of the American Arbitration
Association in accordance with its Commercial Arbitration Rules,
sitting in New York, New York or Charlotte, North Carolina; or
(ii)Arbitration by a panel of the International Centre for
Dispute Resolution in accordance with its International Arbitration
Rules, sitting in London, England or Amsterdam, the Netherlands.
One of such arbitrators shall be selected by a Disinterested Quorum (or by the
Board if a Disinterested Quorum is not obtainable) by a majority vote thereof,
the second by Indemnitee and the third by the two previously selected
arbitrators.
(g) Decision of Authority. To the extent practicable, the Authority
shall make its independent determination hereunder within sixty days of being
selected and shall simultaneously submit a written opinion of its conclusions to
both the Company and the Executive.
(h) Payment in Accordance with Determination by Authority. If the
Authority determines that Indemnitee is entitled to be indemnified for any
Liabilities pursuant to this Agreement, the Company shall pay such Liabilities
to Indemnitee, including interest on such amounts as provided in Section 9(c),
or to such other person or entity as the Executive may designate in writing to
the Company, within ten days of receipt of such opinion.
(i) Expenses Associated with Indemnification Process. The Expenses
associated with the indemnification process set forth in this Section 6,
including, without limitation, the Expenses of the Authority selected hereunder,
shall be paid by the Company.
7. Court-Ordered Indemnification and Advance for Expenses.
(a) Court-Ordered Indemnification. Indemnitee may, either before or
within two years after a determination, if any, has been made by the Authority,
petition the court before which such Action was brought or any other court of
competent jurisdiction to independently determine whether or not he or she has
engaged in misconduct which constitutes a Breach of Duty and is, therefore,
entitled to indemnification under the provisions of this Agreement. Such court
shall thereupon have the exclusive authority to make such determination unless
and until
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such court dismisses or otherwise terminates such proceeding without having made
such determination. Indemnitee may petition a court under this Section 7 either
to seek an initial determination as authorized by Section 6(d) or to seek review
of a previous determination by the Authority.
(b) Rebuttable Presumption and Burden of Proof. The court shall make
its independent determination irrespective of any prior determination made by
the Authority; provided, however, that there shall exist a rebuttable
presumption that Indemnitee has not engaged in misconduct which constitutes a
Breach of Duty and is, therefore, entitled to indemnification hereunder. The
burden of rebutting such presumption by clear and convincing evidence shall be
on the Company or such other party challenging the payment of indemnification.
(c) Court-Ordered Indemnification Despite a Breach of Duty by
Indemnitee. In the event the court determines that Indemnitee has engaged in
misconduct which constitutes a Breach of Duty, it may nonetheless order
indemnification to be paid by the Company if it determines that Indemnitee is
otherwise fairly and reasonably entitled to such indemnification in view of all
of the circumstances of such Action.
(d) Court-Ordered Advance Expenses and Payment of Liabilities. In the
event the Company does not (i) advance Expenses to Indemnitee within ten days of
Indemnitee's compliance with Section 5; or (ii) indemnify Indemnitee with
respect to requested Liabilities under Section 4(a) within ten days of
Indemnitee's written request therefor, Indemnitee may petition the court before
which such Action was brought, if any, or any other court of competent
jurisdiction to order the Company to pay such Expenses or Liabilities
immediately. Such court, after giving any notice it considers necessary, shall
order the Company to immediately pay such Expenses or Liabilities if it
determines that Indemnitee has complied with the applicable provisions of
Section 5 or 4(a), as the case may be.
(e) Payment of Court-Ordered Indemnification and Advance Expenses. If
the court determines pursuant to this Section 7 that Indemnitee is entitled to
be indemnified for any Liabilities, or to the advance of Expenses, unless
otherwise ordered by such court, the Company shall pay such Liabilities or
Expenses to Indemnitee, including interest thereon as provided in Section 9(c),
or to such other person or entity as the Indemnitee may designate in writing to
the Company, within ten days of the rendering of such determination.
(f) Expenses Incurred by Indemnitee in Connection with Judicial
Determination. Indemnitee shall pay all Expenses incurred by Indemnitee in
connection with the judicial determination provided in this Section 7, unless it
shall ultimately be determined by the court that he or she is entitled, in whole
or in part, to be indemnified by, or to receive an advance from, the Company as
authorized by this Agreement. All Expenses incurred by Indemnitee in connection
with any subsequent appeal of the judicial determination provided for in this
Section 7 shall be paid by Indemnitee regardless of the disposition of such
appeal.
8. Termination of Action is Nonconclusive. The adverse termination of
any Action against Indemnitee by judgment, order, settlement, conviction, or
upon a plea of no
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contest or its equivalent, shall not, of itself, create a presumption that
Indemnitee has engaged in misconduct which constitutes a Breach of Duty.
9. Partial Indemnification; Reasonableness; Interest.
(a) Partial Indemnification. If it is determined by the Authority, or
by a court, that Indemnitee is entitled to indemnification against Liabilities
incurred as to some claims, issues or matters, but not as to other claims,
issues or matters, involved in any Action, the Authority, or the court, shall
authorize the proration and payment by the Company of such Liabilities with
respect to which indemnification is sought by Indemnitee, among such claims,
issues or matters as the Authority, or the court, shall deem appropriate in
light of all of the circumstances of such Action.
(b) Unreasonable Expenses. If it is determined by the Authority, or by
a court, that certain Expenses incurred by or on behalf of Indemnitee are for
whatever reason unreasonable in amount, the Authority, or the court, shall
nonetheless authorize indemnification to be paid by the Company to Indemnitee
for such Expenses as the Authority, or the court, shall deem reasonable in light
of all of the circumstances of such Action.
(c) Interest. Interest shall be paid by the Company to Indemnitee at a
reasonable interest rate as determined by the Authority, or by a court, upon
amounts for which the Company indemnifies, or which the Company advances to,
Indemnitee, if not paid or advanced timely as provided herein.
10. Severability. If any provision of this Agreement shall be deemed
invalid or inoperative, or if a court of competent jurisdiction determines that
any of the provisions of this Agreement contravene public policy, this Agreement
shall be construed so that the remaining provisions shall not be affected, but
shall remain in full force and effect, and any such provisions which are invalid
or inoperative or which contravene public policy shall be deemed, without
further action or deed by or on behalf of the Company, to be modified, amended
and/or limited, but only to the extent necessary to render the same valid and
enforceable, and the Company shall indemnify and hold harmless Indemnitee
against Liabilities incurred with respect to any Action to the fullest extent
permitted by any applicable provision of this Agreement that shall not have been
invalidated and to the fullest extent otherwise permitted by applicable law; it
being understood that the intention of the Company is to provide Indemnitee with
the maximum protection against personal liability available under applicable
law.
11. Nonexclusivity. The right to indemnification against Liabilities
and advancement of Expenses provided to Indemnitee by this Agreement shall not
be deemed exclusive of any other rights to indemnification against Liabilities
and advancement of Expenses to which Indemnitee may be entitled under any
charter provision, written agreement, resolution, vote of shareholders or
disinterested directors of the Company or otherwise, both as to acts in his
official capacity as Executive or other employee or agent of the Company and/or
of an Affiliate or as to acts in any other capacity while holding such office or
position, whether or not the Company would have the power to indemnify against
Liabilities or advance Expenses to Indemnitee under this Agreement or under
applicable law; provided that it is not determined that
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the Executive or other employee or agent has engaged in misconduct which
constitutes a Breach of Duty.
12. Notice to the Company; Defense of Action.
(a) Notice to the Company. Indemnitee shall promptly notify the Company
in writing upon being served with or having actual knowledge of any citation,
summons, complaint, indictment or any other similar document relating to any
Action which may result in a claim of indemnification against Liabilities or
advancement of Expenses hereunder, but the omission so to notify the Company
will not relieve the Company from any liability which it may have to Indemnitee
otherwise than under this Agreement unless the Company shall have been
irreparably prejudiced by such omission.
(b) Right of Company to Participate in Action. With respect to any such
Action as to which Indemnitee notifies the Company of the commencement thereof:
(i) The Company shall be entitled to participate therein at its own
expense; and
(ii) Except as otherwise provided below, to the extent that it may
wish, the Company (or any other indemnifying party, including any insurance
carrier, similarly notified by the Company or Indemnitee) shall be entitled
to assume the defense thereof, with counsel selected by the Company (or
such other indemnifying party) and reasonably satisfactory to Indemnitee.
(c) Participation by Company in Action. After notice from the Company
(or such other indemnifying party) to Indemnitee of its election to assume the
defense of an Action, the Company shall not be liable to Indemnitee under this
Agreement for any Expenses or other Liabilities subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the right to
employ his own counsel in such Action but the Expenses of such counsel incurred
after notice from the Company (or such other indemnifying party) of its
assumption of the defense thereof shall be at the expense of Indemnitee unless
(i) the employment of counsel by Indemnitee has been authorized by the Company
(or such other indemnifying party); (ii) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company (or such
other indemnifying party) and Indemnitee in the conduct of the defense of such
Action; or (iii) the Company (or such other indemnifying party) shall not in
fact have employed counsel reasonably satisfactory to Indemnitee to assume the
defense of such Action, in each of which cases the Expenses of counsel shall be
at the expense of the Company. The Company shall not be entitled to assume the
defense of any Derivative Action or any Action as to which Indemnitee shall have
made the conclusion provided for in clause (ii) above.
13. Continuity of Rights and Obligations. The terms and provisions of
this Agreement shall continue as to Indemnitee subsequent to the expiration or
termination of Indemnitee's term as an Executive, and such terms and provisions
shall be binding upon and inure to the benefit of the heirs, estate, executors
and administrators of Indemnitee and the successors and assigns of the Company,
including, without limitation, any successor to the
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Company by way of merger, consolidation and/or sale or disposition of all or
substantially all of the assets or capital stock of the Company. Except as
provided herein, all rights and obligations of the Company and Indemnitee
hereunder shall continue in full force and effect despite the subsequent
amendment or modification of the Company's Articles of Association, as it is 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
shareholders 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 and/or of Indemnitee hereunder.
14. Insurance.
(a) The Company may purchase and maintain insurance on behalf of the
Indemnitee against any liability asserted against him or incurred by him or on
his behalf in such capacity as an Executive, or arising out of his status as
such, whether or not the Company would have the power to indemnify him against
such liability under the provisions of this Agreement or under applicable law,
as it may then be in effect. The purchase and maintenance of such insurance
shall not in any way limit or affect the rights and obligations of the Company
or the Indemnitee under this Agreement, and the execution and delivery of this
Agreement by the Company and the Indemnitee shall not in any way limit or affect
the rights and obligations of the Company or of the other party or parties
thereto under any such policy or agreement of insurance.
(b) If the Indemnitee shall receive payment from any insurance carrier
or from the plaintiff in any Action against the Indemnitee in respect of
indemnified amounts after payments on account of all or part of such indemnified
amounts have been made by the Company pursuant to this Agreement, the Indemnitee
shall promptly reimburse the Company for the amount, if any, by which the sum of
such payment by such insurance carrier or such plaintiff and payments by the
Company to the Indemnitee exceeds such indemnified amounts; provided, however,
that such portions, if any, of such insurance proceeds that are required to be
reimbursed to the insurance carrier under the terms of its insurance policy,
such as deductible or co-insurance payments, shall not be deemed to be payments
to the Indemnitee hereunder. In addition, upon payment of indemnified amounts
under this Agreement, the Company shall be subrogated to the Indemnitee's rights
against any insurance carrier in respect of such indemnified amounts and the
Indemnitee shall execute and deliver any and all instruments and/or documents
and perform any and all other acts or deeds which the Company necessary or
advisable to secure such rights. The Indemnitee shall do nothing to prejudice
such rights of recovery or subrogation.
15. Contribution.
(a) If the indemnity provided for in this Agreement is unavailable to
the Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying
the Indemnitee, shall contribute to the amount reasonably incurred by or on
behalf of the Indemnitee, whether for judgments, fines, penalties, amounts
incurred in settlement and/or for Expenses in connection with any Action, no
matter by whom brought, including without limitation, securities law Actions, in
such proportion as deemed fair and reasonable by the Authority, or by the court
before which such Action was brought, taking into account all of the
circumstances of such Action, in order to reflect:
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(i) the relative benefits received by the Company and the
Indemnitee as a result of the event(s) and/or transaction(s) giving cause
to such Action; and/or
(ii) the relative fault of the Company (and its other executives,
employees and/or agents) and the Indemnitee in connection with such
event(s) and/or transaction(s).
(b) The Indemnitee shall not be entitled to contribution from the
Company under this Section 15 if it is determined by the Authority, or by the
court before which such Action was brought, that the Indemnitee engaged in
criminal, fraudulent or intentional misconduct in the performance of his duty to
the Company or otherwise engaged in a Breach of Duty.
(c) The Company's payment of, and the Indemnitee's right to,
contribution under this Section 15 shall be made and determined in accordance
with Section 4 relating to the Company's payment of, and the Indemnitee's right
to, indemnification under this Agreement.
16. Amendment and Modification. This Agreement may only be amended,
modified or supplemented by the written agreement of the Company and the
Indemnitee.
17. Assignment. This Agreement shall not be assigned by the Company or
the Indemnitee without the prior written consent of the other party hereto,
except that the Company may freely assign its rights and obligations under this
Agreement to any Affiliate for whom the Indemnitee is serving as an executive
thereof; provided, however, that no permitted assignment shall release the
assignor from its obligations hereunder. Subject to the foregoing, this
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
including, without limitation, any successor to the Company by way of merger,
consolidation and/or sale or disposition of all or substantially all of the
capital stock or assets of the Company.
18. Governing Law. All matters with respect to this Agreement,
including, without limitation, matters of validity, construction, effect and
performance shall be governed by the internal laws of the State of Delaware
applicable to contracts made and to be performed therein between the residents
thereof (regardless of the laws that might otherwise be applicable under
principles of conflicts of law).
19. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or when mailed by certified registered
mail, return receipt requested, with postage prepaid:
(a) If to the Indemnitee, to such address which the Indemnitee shall
furnish to the Company in writing pursuant to the above.
(b) If to the Company, to:
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Attention: Vice President & General Counsel
or to such other person or address as the Company shall furnish to the
Indemnitee in writing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
ORTHOFIX INTERNATIONAL N.V.
("Company")
By:
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Name:
---------------------------
Title:
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INDEMNITEE
-----------------------------------
Name:
12