EXHIBIT 10.37


 


INDEMNITY AGREEMENT


 


THIS AGREEMENT is made as of March 27, 2006 by and
between Bioject Medical Technologies Inc., an Oregon corporation (Company), and
Jerry Cobbs (Indemnitee), a director of the Company.


 


RECITALS


 


A.            It
is essential to the Company to retain and attract as directors the most capable
persons available.


 


B.            The
increase in corporate litigation subjects directors to expensive litigation
risks at the same time that the availability and coverage of directors’ and
officers’ liability insurance has been reduced.


 


C.            It
is now and always has been the express policy of the Company to indemnify its
directors so as to provide them with the maximum possible protection permitted
by law.


 


D.            The
bylaws of the Company require indemnification of the directors of the Company
to the fullest extent permitted by the Oregon Business Corporation Act (Act). The
Act expressly provides that the indemnification provisions set forth in the Act
are not exclusive, and thereby contemplates that contracts may be entered into
between the Company and members of the board of directors with respect to
indemnification.


 


NOW, THEREFORE, the Company and Indemnitee agree as
follows:


 


1.             Services to the Company. Indemnitee agrees to serve or
continue to serve as a director of the Company.


 


2.             Definitions. As used in this Agreement:


 


(a)           The term “Proceeding” shall include
any threatened, pending or completed action, suit or proceeding, whether
brought in the right of the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which Indemnitee is or was a
director or officer of the Company or is or was serving at the request of the
Company as a director, officer, or agent of another corporation, partnership,
joint venture, trust or other enterprise, whether or not serving in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement.


 


(b)           The term “Expenses” includes, without
limitation, expense of investigations, judicial or administrative proceedings
or appeals, attorneys’ fees and disbursements and any expenses of establishing
a right to indemnification under Section 11 of this Agreement, but shall not
include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.


 


(c)           References to “other enterprise”
shall include employee benefit plans; references to “fines” shall include any
excise tax assessed with respect to any employee benefit plan; reference to “serving
at the request of the Company” shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner reasonably believed to be in the best
interest of an employee benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Company” as referred to in this Agreement.


 


3.             Indemnity in Third-Party Proceedings. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(other than a Proceeding by or in the right of the Company to procure a
judgment in its favor) against all Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee in connection with
the Proceeding, but only if Indemnitee acted in good faith and in a manner
which Indemnitee 


 

















 


reasonably believed to be in or not opposed to the best interests of
the Company and, in the case of a criminal proceeding, in addition, had no
reasonable cause to believe that Indemnitee’s conduct was unlawful.


 


4.             Indemnity in Proceedings by or in the Right of the Company. The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is a party to or threatened to be made a party to any
Proceeding by or in the right of Company to procure a judgment in its favor
against all Expenses actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of the Proceeding, but only if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company. No
indemnification for Expenses shall be made under this Section 4 in respect of
any claim, issue or matter as to which Indemnitee shall have been finally
adjudged by a court to be liable to the Company, unless and only to the extent
that any court in which the Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity.


 


5.             Indemnification of Expenses of Successful Party. Notwithstanding
any other provisions of this Agreement, to the extent that Indemnitee has been
successful, on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein, including the dismissal of an
action without prejudice, the Company shall indemnify Indemnitee against all
Expenses incurred in connection therewith.


 


6.             Additional Indemnification.


 


(a)           Notwithstanding any limitation in
Sections 3, 4 or 5, the Company shall indemnify Indemnitee to the fullest
extent permitted by law if Indemnitee is a party to or threatened to be made a
party to any Proceeding (including a Proceeding by or in the right of the
Company to procure a judgment in its favor) against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding. No indemnity shall be made under
this Section 6(a) on account of Indemnitee’s conduct which constitutes a breach
of Indemnitee’s duty of loyalty to the Company or its shareholders or is an act
or omission not in good faith or which involves intentional misconduct or a
knowing violation of the law.


 


(b)           Notwithstanding any limitation in
Sections 3, 4, 5 or 6(a), the Company shall indemnify Indemnitee to the fullest
extent permitted by law if Indemnitee is a party to or threatened to be made a
party to any Proceeding (including a Proceeding by or in the right of the
Company to procure a judgment in its favor) against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding.


 


(c)           For purposes of Sections 6(a) and
6(b), the meaning of the phrase “to the fullest extent permitted by law” shall
include, but not be limited to:


 


(i)            to the fullest extent permitted by
the provision of the Act that authorizes or contemplates additional
indemnification by agreement, or the corresponding provision of any amendment
to or replacement of the Act, and


 


(ii)           to the fullest extent authorized or
permitted by any amendments to or replacements of the Act adopted after the
date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.


 


7.             Exclusions. Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to make any indemnity
in connection with any claim made against Indemnitee:


 


(a)           for which payment has actually been
made to or on behalf of Indemnitee under any insurance policy or other
indemnity provision, except with respect to any excess beyond the amount paid
under any insurance policy or other indemnity provision;


 


(b)           for any transaction from which Indemnitee
derived an improper personal benefit;


 


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(c)           for an accounting of profits made
from the purchase and sale (or sale and purchase) by Indemnitee of securities
of the Company within the meaning of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or similar provisions of state statutory law or common
law;


 


(d)           if a court having jurisdiction in the
matter shall finally determine that such indemnification is not lawful under
any applicable statute or public policy (and, in this respect, both the Company
and Indemnitee have been advised that the Securities and Exchange Commission
believes that indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore, unenforceable and
that claims for indemnification should be submitted to appropriate courts for
adjudication); or


 


(e)           in connection with any Proceeding (or
part of any Proceeding) initiated by Indemnitee, or any Proceeding by Indemnitee
against the Company or its directors, officers, employees or other indemnitees,
unless (i) the Company is expressly required by law to make the
indemnification, (ii) the Proceeding was authorized by the Board of Directors
of the Company, (iii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable law,
or (iv) Indemnitee initiated the Proceeding pursuant to Section 11 of this
Agreement and Indemnitee is successful in whole or in part in the Proceeding.


 


8.             Advances of Expenses. The Company shall pay the expenses
incurred by Indemnitee in any Proceeding in advance at the written request of
Indemnitee, if Indemnitee:


 


(a)           furnishes the Company a written
affirmation of the Indemnitee’s good faith belief that Indemnitee is entitled
to be indemnified by the Company under this Agreement; and


 


(b)           furnishes the Company a written
undertaking to repay the advance to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Company. Advances
shall be made without regard to Indemnitee’s ability to repay the expenses and
without regard to Indemnitee’s ultimate entitlement to indemnification under
the other provisions of this Agreement.


 


9.             Notification and Defense of Claim. Not later than thirty
(30) days after receipt by Indemnitee of notice of the commencement of any
Proceeding, Indemnitee will, if a claim in respect of the Proceeding is to be
made against the Company under this Agreement, notify the Company of the
commencement of the Proceeding. The omission to notify the Company will not
relieve the Company from any liability which it may have to Indemnitee
otherwise than under this Agreement. With respect to any Proceeding as to which
Indemnitee notifies the Company of the commencement:


 


(a)           The Company will be entitled to
participate in the Proceeding at its own expense.


 


(b)           Except as otherwise provided below,
the Company may, at its option and jointly with any other indemnifying party
similarly notified and electing to assume such defense, assume the defense of
the Proceeding, with legal counsel reasonably satisfactory to the Indemnitee. Indemnitee
shall have the right to use separate legal counsel in the Proceeding, but the
Company shall not be liable to Indemnitee under this Agreement, including
Section 8 above, for the fees and expenses of separate legal counsel incurred
after notice from the Company of its assumption of the defense, unless (i)
Indemnitee reasonably concludes that there may be a conflict of interest
between the Company and Indemnitee in the conduct of the defense of the
Proceeding or (ii) the Company does not use legal counsel to assume the defense
of such Proceeding. The Company shall not be entitled to assume the defense of
any Proceeding brought by or on behalf of the Company or as to which Indemnitee
shall have made the conclusion provided for in (i) above.


 


(c)           If two or more persons who may be
entitled to indemnification from the Company, including the Indemnitee, are
parties to any Proceeding, the Company may require Indemnitee to use the same
legal counsel as the other parties. Indemnitee shall have the right to use
separate legal counsel in the Proceeding, but the Company shall not be liable
to Indemnitee under this Agreement, including Section 8 above, for the fees and
expenses of separate legal counsel incurred after notice from the Company of
the requirement to use the same legal counsel as the other parties, unless the
Indemnitee reasonably concludes 


 


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that there may be a conflict of interest between
Indemnitee and any of the other parties required by the Company to be
represented by the same legal counsel.


 


(d)           The Company shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any Proceeding effected without its written consent, which shall not be
unreasonably withheld. Indemnitee shall permit the Company to settle any
Proceeding the defense of which it assumes, except that the Company shall not
settle any action or claim in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee’s written consent, which may be
given or withheld in Indemnitee’s sole discretion.


 


10.           Procedure Upon Application for Indemnification. Any
indemnification under Sections 3, 4, 5 or 6 of this Agreement shall be made no
later than 90 days after receipt of the written request of Indemnitee for
indemnification and shall not require that a determination be made in accordance
with the Act by the persons specified in the Act that indemnification is
required under this Agreement. However, unless it is ordered by a court in an
enforcement action under Section 11 of this Agreement, no such indemnification
shall be made if a determination is made within such 90-day period by (a) the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to the Proceeding, or (b) independent legal counsel in a
written opinion (which counsel shall be appointed if a quorum is not
obtainable), that the Indemnitee is not entitled to indemnification under this
Agreement.


 


11.           Enforcement.  The Indemnitee may enforce any right to
indemnification or advances granted by this Agreement to Indemnitee in any
court of competent jurisdiction if (a) the Company denies the claim for
indemnification or advances, in whole or in part, or (b) the Company does
not dispose of the claim within 90 days of a written request for
indemnification or advances.  Indemnitee, in the enforcement action, if
successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting the claim. It shall be a defense to any such enforcement action
(other than an action brought to enforce a claim for advancement of expenses
pursuant to Section 8 above, if Indemnitee has tendered to the Company the
required affirmation and undertaking) that Indemnitee is not entitled to
indemnification under this Agreement, but the burden of proving this defense
shall be on the Company. Neither a failure of the Company (including its Board
of Directors or its shareholders) to make a determination prior to the
commencement of the enforcement action that indemnification of Indemnitee is
proper in the circumstances, nor an actual determination by the Company
(including its Board of Directors or its shareholders) that indemnification is
improper shall be a defense to the action or create a presumption that
Indemnitee is not entitled to indemnification under this Agreement or otherwise.
The termination of any Proceeding by judgment, order of court, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee is not entitled to indemnification
under this Agreement or otherwise.


 


12.           Partial Indemnification. If Indemnitee is entitled under any
provisions of this Agreement to indemnification by the Company for some or part
of the Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in the investigation, defense, appeal or
settlement of any Proceeding but not, however, for the total amount, the
Company shall indemnify Indemnitee for the portion of the Expenses, judgments,
fines and amounts paid in settlement to which Indemnitee is entitled.


 


13.           Nonexclusivity and Continuity of Rights. The indemnification
provided by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may be entitled under the Restated Articles of Incorporation,
the Restated Bylaws, any other agreement, any vote of shareholders or
directors, the Act, or otherwise, both as to action in Indemnitee’s official
capacity and as to action in other capacity while holding office. The
indemnification under this Agreement shall continue as to Indemnitee even
though Indemnitee ceases to be a director and shall inure to the benefit of the
heirs and personal representatives of Indemnitee.


 


14.           Severability. If this Agreement or any portion of it is
invalidated on any ground by any court of competent jurisdiction, the Company
shall indemnify Indemnitee as to Expenses, judgments, fines and amounts paid in
settlement with respect to any Proceeding to the full extent permitted by any
applicable portion of this Agreement that is not invalidated or by any other applicable
law.


 


15.           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. Indemnitee shall execute all documents 


 


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required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such
rights.


 


16.           Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
parties. No waiver of any of the provisions of this Agreement shall constitute
a waiver of any other provisions of this Agreement (whether or not similar) nor
shall any waiver constitute a continuing waiver, unless expressly stated in any
waiver.


 


17.           Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) upon delivery if delivered by hand to the party to
whom the notice or other communication shall have been directed or (b) if
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:


 


(i)            If
to Indemnitee, at the address indicated on the signature page of this
Agreement.


 


(ii)           If
to the Company to


 


[                                  ]


 


or to any other address as may have been furnished to
Indemnitee by the Company.


 


18.           Counterparts. The parties may execute this Agreement in two
counterparts, each of which shall constitute the original.


 


19.           Applicable Law. This Agreement shall be governed by and
construed in accordance with the law of the state of Oregon.


 


20.           Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.


 


IN WITNESS WHEREOF, the parties have caused this
Agreement to be signed as of the day and year first above written.


 


	
  Bioject Medical Technologies Inc.

  	
  INDEMNITEE

  
	
   

  	
   

  
	
  By:

  	
  /s/John Gandolfo

  	
   

  	
  /s/Jerald S. Cobbs

  	
   

  
	
  John Gandolfo

  	
  Jerald S. Cobbs

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  	
  (signature)

  
						



 


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