exv10w1



 






Exhibit 10.1




INDEMNIFICATION
AGREEMENT




     This
Indemnification Agreement (this “Agreement”)
is entered into as of the 30th day
of January, 2004, by and between Volcano Therapeutics, Inc., a Delaware corporation (the
“Company”)
and                   
                    (“Indemnitee”).



Recitals




     A. The Company and Indemnitee recognize the continued difficulty in obtaining
liability insurance for its directors, officers, employees, stockholders (as defined in
Section
10(g)), controlling persons, agents and fiduciaries, the significant increases in the cost of
such
insurance and the general reductions in the coverage of such insurance.



     B. The Company and Indemnitee further recognize the substantial increase in
corporate litigation in general, subjecting directors, officers, employees, controlling
persons,
stockholders (as defined in Section 10(g)), agents and fiduciaries to expensive litigation
risks at
the same time as the availability and coverage of liability insurance has been severely
limited.



     C. Indemnitee does not regard the current protection available as adequate under the
present circumstances, and Indemnitee and other directors, officers, employees, stockholders
(as
defined in Section 10(g)), controlling persons, agents and fiduciaries of the Company may not
be
willing to serve in such capacities without additional protection.



     D. The Company (i) desires to attract and retain the involvement of highly qualified
groups, such as Indemnitee, to serve the Company and, in part, in order to induce each
Indemnitee to be involved with the Company and (ii) wishes to provide for the indemnification
and advancing of expenses to each Indemnitee to the maximum extent permitted by law.



     E. In view of the considerations set forth above, the Company desires that each
Indemnitee be indemnified by the Company as set forth herein.



     Now Therefore, the Company and each Indemnitee hereby agrees as follows:



     1. Indemnification.



          (a) Indemnification of Expenses. The Company shall indemnify and hold harmless
each Indemnitee (including its respective directors, officers, general partners, limited partners,
members, managing members, employees, agents and spouses) and each person who controls any of them
or who may be liable within the meaning of Section 15 of the Securities Act of 1933, as amended
(the “Securities Act”), or Section 20 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), to the fullest extent permitted by law if such Indemnitee was or is or becomes a
party to or witness or other participant in, or is threatened to be made a party to or witness or
other participant in, any threatened, pending or completed action, suit, proceeding or alternative
dispute resolution mechanism, or any hearing, inquiry or investigation that such Indemnitee
believes might lead to the institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether civil, criminal, administrative, investigative or other (hereinafter
a “Claim”) by reason of (or arising in part out of) any event or




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occurrence related to the fact that Indemnitee is or was or may be deemed a director, officer,
stockholder (as defined in Section 10(g)), employee, controlling person, agent or fiduciary of the
Company, or any subsidiary of the Company, or is or was or may be deemed to be serving at the
request of the Company as a director, officer, stockholder (as defined in Section 10(g)), employee,
controlling person, agent or fiduciary of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action or inaction on the part of such Indemnitee while
serving in such capacity including, without limitation, any and all losses, claims, damages,
expenses and liabilities, joint or several (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action, suit, proceeding or
any claim asserted) under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, which relate directly or indirectly to the
registration, purchase, sale or ownership of any securities of the Company or to any fiduciary
obligation owed with respect thereto or as a result of any claim (a) made by any stockholder (as
defined in Section 10(g)) of the Company against an Indemnitee and arising out of or related to any
round of financing of the Company (including, but not limited to, claims regarding
non-participation, or non-prorata participation, in such round by such stockholder (as defined in
Section 10(g)), (b) made by a third party against an Indemnitee based on any misstatement or
omission of a material fact by the Company in violation of any duty of disclosure imposed on the
Company by Federal or state securities or common laws, (c) made by a third party against an
Indemnitee based (in whole or in part) on, or arising in any way out of, or relating to conduct
attributed to the Company or anyone alleged to be acting on the Company’s behalf, or (d) made by a
third party against an Indemnitee based (in whole or in part) on, or arising in any way out of, or
relating to (i) the Indemnitee being an investor in the Company, (ii) the Indemnitee’s alleged
participation in the management or direction of the Company, (iii) the Indemnitee’s alleged
participation in providing any assistance or advice to the Company, or (iv) Indemnitee being a
person described in Section 15 of Securities Act or Section 20 of the Exchange Act (hereinafter an
individually an “Indemnification Event” and
collectively the “Indemnification Events”) against
any and all expenses (including attorneys’ fees and all other costs, expenses and obligations
incurred in connection with investigating, defending, being a witness in or participating in
(including an appeal), or preparing to defend, be a witness in or participate in, any such action,
suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or investigation),
judgments, fines, penalties and amounts paid in settlement (if, and only if, such settlement is
approved in advance by the Company, which approval shall not be unreasonably withheld) of such
Claim and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the
actual or deemed receipt of any payments under this Agreement (collectively, hereinafter
“Expenses”), including all interest, assessments and other charges paid or payable in connection
with or in respect of such Expenses. Such payment of Expenses shall be made by the Company as soon
as practicable but in any event no later than ten (10) days after written demand by the Indemnitee
therefor is presented to the Company.




          (b) Reviewing Party. Notwithstanding the foregoing, (i) the obligations of the
Company under Section 1(a) shall be subject to the condition that it shall not have been finally
determined that Indemnitee would not be permitted to be indemnified under applicable law (initial
determination shall be made by the Reviewing Party as described in Section 10(e) hereof in a
written opinion, in any case in which the Independent Legal Counsel
referred to in Section 1(e)
hereof is involved), and (ii) and each Indemnitee acknowledges and agrees that the obligation of
the Company to make an advance payment of Expenses to Indemnitee pursuant to




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Section 2(a) (an “Expense Advance”) shall be subject to the condition that, if, when and to the
extent that it is so determined that Indemnitee would not be permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee
has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee should be indemnified under applicable law, any initial
determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified
under applicable law shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made with respect thereto
(as to which all rights of appeal therefrom have been exhausted or lapsed). Indemnitee’s obligation
to reimburse the Company for any Expense Advance shall be unsecured and no interest shall be
charged thereon. If there has not been a Change in Control (as
defined in Section 10(c) hereof),
the Reviewing Party shall be selected by the Board of Directors, and if there has been such a
Change in Control (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), the
Reviewing Party shall be the Independent Legal Counsel referred to in
Section 1(e) hereof. If there
has been no determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation seeking an initial
determination by the court or challenging any such determination by the Reviewing Party or any
aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to
service of process and to appear in any such proceeding. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Company and Indemnitee.




          (c) Contribution. If the indemnification provided for in Section l(a) above for
any reason is held by a court of competent jurisdiction to be unavailable to an Indemnitee in
respect of any losses, claims, damages, expenses or liabilities referred to therein, then the
Company, in lieu of indemnifying such Indemnitee thereunder, shall contribute to the amount paid or
payable by such Indemnitee as a result of such losses, claims, damages, expenses or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company and
the Indemnitee, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and the Indemnitee in
connection with the action or inaction which resulted in such losses, claims, damages, expenses or
liabilities, as well as any other relevant equitable considerations. In connection with the
registration of the Company’s securities, the relative benefits received by the Company and the
Indemnitee shall be deemed to be in the same respective proportions that the net proceeds from the
offering (before deducting expenses) received by the Company and the Indemnitee, in each case as
set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public
offering price of the securities so offered. The relative fault of the Company and the Indemnitee
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Indemnitee and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.




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The Company and the Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 1 (c) were determined by pro rata or per capita allocation or by any
other method of allocation which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. In connection with the registration of the Company’s
securities, in no event shall Indemnitee be required to contribute any amount under this Section
l(c) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or
liabilities indemnified against equal to the proportion of the total securities sold under such
registration statement which is being sold by such Indemnitee or (ii) the proceeds received by such
Indemnitee from its sale of securities under such registration statement. 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.




          (d) Survival Regardless of Investigation. The indemnification and
contribution provided for in this Section 1 will remain in full force and effect
regardless of any
investigation made by or on behalf of the Indemnitee or any officer, director, general
partner,
limited partner, member, managing member, employee, agent or controlling person of the
Indemnitee.




          (e) Change in Control. The Company agrees that if there is a Change in
Control of the Company (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
payments of Expenses under this Agreement or any other agreement or under the Company’s
Restated Certificate of Incorporation (the “Restated Certificate”) or Bylaws as now or
hereafter
in effect, Independent Legal Counsel (as defined in Section 10(d) hereof) shall be
selected by the
Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld).
Such counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent Indemnitee would be permitted to be
indemnified
under applicable law. The Company agrees to abide by such opinion and to pay the
reasonable
fees of the Independent Legal Counsel referred to above and to fully indemnify such
counsel
against any and all expenses (including attorneys’ fees), claims, liabilities and damages
arising
out of or relating to this Agreement or its engagement pursuant hereto.




          (f) Mandatory Payment of Expenses. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise,
including, without limitation, the dismissal of an action without prejudice, in the
defense of any
action, suit, proceeding, inquiry or investigation referred to in Section l(a) hereof or
in the
defense of any claim, issue or matter therein, each Indemnitee shall be indemnified
against all
Expenses incurred by such Indemnitee in connection herewith.




     2. Expenses; Indemnification Procedure.



          (a) Advancement of Expenses. The Company shall advance all Expenses
incurred by Indemnitee. The advances to be made hereunder shall be paid by the Company to
Indemnitee as soon as practicable but in any event no later than fifteen (15) days after
written demand by such Indemnitee therefor to the Company.




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          (b) Notice/Cooperation by Indemnitee. Indemnitee shall give the Company
notice as soon as practicable of any Claim made against Indemnitee for which
indemnification
will or could be sought under this Agreement. Notice to the Company shall be directed to the
Chief Executive Officer of the Company at the address shown on the signature page of this
Agreement (or such other address as the Company shall designate in writing to Indemnitee).




          (c) No Presumptions; Burden of Proof. For purposes of this Agreement, the
termination of any Claim 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
applicable
law. In addition, neither the failure of the Reviewing Party to have made a determination
as to
whether Indemnitee has met any particular standard of conduct or had any particular
belief, nor
an actual determination by the Reviewing Party that Indemnitee has not met such standard
of
conduct or did not have such belief, prior to the commencement of legal proceedings by
Indemnitee to secure a judicial determination that Indemnitee should be indemnified under
applicable law, shall be a defense to Indemnitee’s claim or create a presumption that
Indemnitee
has not met any particular standard of conduct or did not have any particular belief. In
connection with any determination by the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be on the
Company
to establish that Indemnitee is not so entitled.




          (d) Notice to Insurers. If, at the time of the receipt by the Company of a
notice of a Claim pursuant to Section 2(b) hereof, the Company has liability insurance in
effect
which may cover such Claim, the Company shall give prompt written notice of the
commencement of such Claim to the insurers in accordance with the procedures set forth in
each
of the policies. The Company shall thereafter take all necessary or desirable action to
cause such
insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such action,
suit,
proceeding, inquiry or investigation in accordance with the terms of such policies.




          (e) Selection of Counsel. In the event the Company shall be obligated
hereunder to pay the Expenses of any Claim, the Company shall be entitled to assume the
defense of such Claim, with counsel reasonably approved by the applicable Indemnitee,
upon the
delivery to such Indemnitee of written notice of its election to do so. After delivery of
such
notice, approval of such counsel by the Indemnitee and the retention of such counsel by
the
Company, the Company will not be liable to such Indemnitee under this Agreement for any
fees
of counsel subsequently incurred by such Indemnitee with respect to the same Claim;
provided
that, (i) the Indemnitee shall have the right to employ such Indemnitee’s counsel in any
such
Claim at the Indemnitee’s expense; (ii) the Indemnitee shall have the right to employ his
own
counsel in connection with any such proceeding, at the expense of the Company, if such
counsel
serves in a review, observer, advice and counseling capacity and does not otherwise
materially
control or participate in the defense of such proceeding; and (iii) if (A) the employment
of
counsel by the Indemnitee has been previously authorized by the Company, (B) such
Indemnitee
shall have reasonably concluded that there is a conflict of interest between the Company
and
such Indemnitee in the conduct of any such defense, or (C) the Company shall not continue
to
retain such counsel to defend such Claim, then the fees and expenses of the Indemnitee’s
counsel
shall be at the expense of the Company.





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     3. Additional Indemnification Rights; Nonexclusivity.



          (a) Scope. The Company hereby agrees to indemnify Indemnitee to the
fullest extent permitted by law, even if such indemnification is not specifically authorized
by the
other provisions of this Agreement or any other agreement, the Company’s Restated Certificate,
the Company’s Bylaws 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 or an officer, stockholder (as defined in Section
10(g)), employee, controlling person, agent or fiduciary, it is the intent of the parties
hereto that
Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change. 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, stockholder (as
defined in Section 10(g)), employee, agent or fiduciary, such change, 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 except as set forth in Section 8(a)
hereof.




          (b) Nonexclusivity. The indemnification provided by this Agreement shall be
in addition to any rights to which Indemnitee may be entitled under the Company’s Restated
Certificate, its Bylaws, any agreement, any vote of stockholders or disinterested directors,
the
laws of the State of California or the State of Delaware, or otherwise. The indemnification
provided under this Agreement shall continue as to each Indemnitee for any action such
Indemnitee took or did not take while serving in an indemnified capacity even though the
Indemnitee may have ceased to serve in such capacity and such indemnification shall inure to
the
benefit of each Indemnitee from and after Indemnitee’s first day of service as a director with
the
Company or affiliation with a director from and after the date such director commences
services
as a director with the Company.




     4. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any Claim made against any Indemnitee to
the extent such Indemnitee has otherwise actually received payment (under any insurance
policy,
Restated Certificate, Bylaws or otherwise) of the amounts otherwise indemnifiable hereunder.



     5. Partial Indemnification. If any Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for any portion of Expenses incurred in
connection with any Claim, but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such Expenses to which such
Indemnitee is entitled.



     6. Mutual Acknowledgement. The Company and each Indemnitee acknowledge that
in certain instances, Federal law or applicable public policy may prohibit the Company from
indemnifying its directors, officers, stockholders (as defined in Section 10(g)), employees,
controlling persons, agents or fiduciaries under this Agreement or otherwise.



     7. Liability Insurance. To the extent the Company maintains liability insurance
applicable to directors, officers, stockholders (as defined in Section 10(g)), employees,
control
persons, agents or fiduciaries, each Indemnitee shall be covered by such policies in such a



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manner as to provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company’s directors, if such Indemnitee is a director, or of the
Company’s officers, if such Indemnitee is not a director of the Company but is an officer, or
of the Company’s key employees, controlling persons, agents or fiduciaries, if such
Indemnitee is not an officer or director but is a key employee, agent, control person, or
fiduciary.




     8. 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 any
Indemnitee with respect to Claims initiated or brought voluntarily by such Indemnitee and
not by
way of defense, except (i) with respect to actions or proceedings to establish or enforce
a right to
indemnification under this Agreement or any other agreement or insurance policy or under
the
Company’s Restated Certificate or Bylaws now or hereafter in effect relating to Claims
for
Indemnifiable Events, (ii) in specific cases if the Board of Directors has approved the
initiation
or bringing of such Claim, or (iii) as otherwise required under Delaware statute or law,
regardless of whether such Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may be; or




          (b)
Claim Under Section 16(b). To indemnify any Indemnitee for expenses
and the payment of profits arising from the purchase and sale by such Indemnitee of
securities in
violation of Section 16(b) of the Exchange Act or any similar successor statute; or




          (c) Unlawful Indemnification. To indemnify an Indemnitee if a final decision
by a court having jurisdiction in the matter shall determine that such indemnification is
not
lawful.




     9. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against any Indemnitee, any
Indemnitee’s
estate, spouse, heirs, executors or personal or legal representatives after the
expiration of five (5)
years from the date of accrual of such cause of action, and any claim or cause of action
of the
Company shall be extinguished and deemed released unless asserted by the timely filing of
a
legal action within such five (5) year period; provided, however, that if any shorter
period of
limitations is otherwise applicable to any such cause of action, such shorter period
shall govern.



     10. Construction of Certain Phrases.



          (a) For purposes of this Agreement, references to the “Company” shall include, in
addition to the resulting corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, stockholders (as defined
in Section 10(g)), employees, agents or fiduciaries, so that if Indemnitee is or was or may be
deemed a director, officer, stockholder (as defined in Section 10(g)), employee, agent, control
person, or fiduciary of such constituent corporation, or is or was or may be deemed to be serving
at the request of such constituent corporation as a director, officer, stockholder (as defined in
Section 10(g)), employee, control person, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, each




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Indemnitee shall stand in the same position under the provisions of this Agreement with respect to
the resulting or surviving corporation as each Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.




          (b) For purposes of this Agreement, references to “other enterprises” shall
include employee benefit plans; references to “fines”
shall include any excise taxes assessed
on
any 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, stockholder (as
defined
in Section 10(g)), employee, agent or fiduciary of the Company which imposes duties on, or
involves services by, such director, officer, stockholder (as defined
in Section 10(g)),
employee,
agent or fiduciary with respect to an employee benefit plan, its participants or its
beneficiaries;
and if any Indemnitee acted in good faith and in a manner such Indemnitee reasonably believed
to be in the interest of the participants and beneficiaries of an employee benefit plan, such
Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of
the
Company” as referred to in this Agreement.




          (c) For
purposes of this Agreement a “Change in Control” shall be deemed
to have occurred if (i) any “person” (as such term is used in Section 13(d)(3) and 14(d)(2) of
the
Exchange Act), other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned directly or indirectly by the stockholders
(as
defined in Section 10(g)) of the Company in substantially the same proportions as their
ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing twenty percent (20%) or more of the
combined voting power of the Company’s then outstanding Voting Securities, increases his
beneficial ownership of such securities by five percent (5%) or more over the percentage so
owned by such person, or (B) becomes the “beneficial owner” (as defined in Rule 13d-3 under
said Exchange Act), directly or indirectly, of securities of the Company representing more
than
thirty percent (30%) of the total voting power represented by the Company’s then outstanding
Voting Securities, (ii) during any period of two (2) consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and any new director
whose election by the Board of Directors or combination for election by the Company’s
stockholders (as defined in Section 10(g)) was approved by a vote of at least two-thirds (2/3)
of
the directors then still in office who either were directors at the beginning of the period or
whose
election or nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders (as defined in Section 10(g)) of the
Company approve a merger or consolidation of the Company with any other corporation 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 two-thirds
(2/3) of
the total voting power represented by the Voting Securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the stockholders (as
defined in Section 10(g)) of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one transaction or a
series of transactions) all or substantially all of the Company’s assets.




          (d) For
purposes of this Agreement, “Independent Legal
Counsel” shall mean an attorney or
firm of attorneys, selected in accordance with the provisions of Section 1(e)




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hereof, who shall not have otherwise performed services for the Company or any Indemnitee within
the last three (3) years (other than with respect to matters concerning the right of any
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).




          (e) For purposes of this Agreement, a “Reviewing Party” shall mean any
appropriate person or body consisting of a member or members of the Company’s Board of
Directors or any other person or body appointed by the Board of Directors who is not a party
to
the particular Claim for which Indemnitee is seeking indemnification or Independent Legal
Counsel.




          (f) For purposes of this Agreement, “Voting Securities” shall mean any
securities of the Company that vote generally in the election of directors.




          (g) For purposes of this Agreement, “stockholder” shall include any holder of
any capital stock of the Company and an affiliate thereof. For purposes of this Agreement,
“affiliate” shall constitute any limited partner, general partner, or any member or managing
member of such general partner.




     11. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall constitute an original.



     12. Binding
Effect; Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase, merger,
consolidation
or otherwise to all or substantially all of the business and/or assets of the Company,
partnership,
spouses, heirs, and personal and legal representatives. The Company shall require and cause
any
successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the Company, by
written
agreement in form and substance satisfactory to each 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. This Agreement shall continue in
effect with respect to Claims relating to Indemnifiable Events regardless of whether any
Indemnitee continues to serve as a director, officer, employee, agent, controlling person, or
fiduciary of the Company or of any other enterprise, including subsidiaries of the Company, at
the Company’s request.



     13. Attorneys’
Fees. In the event that any action is instituted by an Indemnitee under
this Agreement or under any liability insurance policies maintained by the Company to enforce
or interpret any of the terms hereof or thereof, such Indemnitee shall be entitled to be paid
all
Expenses incurred by such Indemnitee with respect to such action, regardless of whether such
Indemnitee is ultimately successful in such action, and shall be entitled to the advancement
of
Expenses with respect to such action, unless, as a part of such action, a court of competent
jurisdiction over such action determines that each of the material assertions made by such
Indemnitee as a basis for such action was not made in good faith or was frivolous. In the
event
of an action instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, the Indemnitee shall be entitled to be paid all
Expenses incurred by such Indemnitee in defense of such action (including costs and expenses




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incurred with respect to Indemnitee counterclaims and cross-claims made in such action),
and shall be entitled to the advancement of Expenses with respect to such action.




     14. Notice.
All notices and other communications required or permitted hereunder shall
be in writing, shall be effective when given, and shall in any event
be deemed to be given (a) five
(5) days after deposit with the U.S. Postal Service or other
applicable postal service, if delivered
by first class mail, postage prepaid, (b) upon delivery, if
delivered by hand, (c) one business day
after the business day of deposit with Federal Express or similar
overnight courier, freight
prepaid, or (d) one day after the business day of delivery by
facsimile transmission, if deliverable
by facsimile transmission, with copy by first class mail, postage
prepaid, and shall be addressed,
if to Indemnitee, at each Indemnitee’s address as set forth
beneath the Indemnitee’s signature to
this Agreement, and, if to the Company, at the address of its
principal corporate offices
(attention: Secretary), or at such other address as such party may
designate by ten (10) days’
advance written notice to the other parties hereto.



     15. Consent
to Jurisdiction. The Company and each Indemnitee each hereby irrevocably
consent to the jurisdiction and venue of the courts of the State of
California for all purposes in
connection with any action or proceeding which arises out of or
relates to this Agreement and agree
that any action instituted under this Agreement shall be commenced, prosecuted and continued only in
the courts of the State of California.



     16. Severability.
The provisions of this Agreement shall be severable in the event that
any of the provisions hereof (including any provision within a single section, paragraph
or sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest
extent permitted by law. Furthermore, to the fullest extent possible, the provisions of this
Agreement (including, without limitations, each portion of this Agreement containing any provision
held to be invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the extent manifested by the provision
held invalid, illegal or unenforceable.



     17. Choice
of Law. This Agreement shall be governed by and its provisions construed and
enforced in accordance with the laws of the State of Delaware, as
applied to contracts between
Delaware residents, entered into and to be performed entirely within
the State of Delaware, without
regard to the conflict of laws principles thereof.



     18. 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 effectively to bring suit to enforce such rights.



     19. Amendment
and Termination. No amendment, modification, termination or cancellation
of this Agreement shall be effective unless it is in writing signed
by the parties to be bound
thereby. Notice of same shall be provided to all parties hereto. No
waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.



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     20. No
Construction as Employment Agreement. Nothing contained in this Agreement shall
be construed as giving any Indemnitee any right to be retained in the
employ of the Company or any
of its subsidiaries.



     21. Corporate Authority. The Board of Directors of the Company in accordance
with Delaware law have approved the terms of this Agreement.



     In Witness Whereof, the parties hereto have executed this Agreement on and as of the
day and year first above written.



	 	 	 	 	 
	 	VOLCANO THERAPEUTICS, INC., 

a Delaware corporation

 	 
	 	By:  	/s/ Scott Huennekens
 	 
	 	 	Scott Huennekens,     	 
	 	 	President and Chief Executive Officer 	 
	 



	 	 	 	 	 	 
	 

	 	Address:
	 	2870 Kilgore Road	 
	 

	 	 	 	Rancho Cordova, CA 95670	 
	 
	 	 	 	 	 
	 	 	Indemnitee:	 
	 	 	 	 
	 	 	 	 






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