Exhibit 10.1


 


INDEMNIFICATION AGREEMENT


 


This
INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into
this 15th day of October, 2010 (the “Effective Date”) by and between ICU
Medical, Inc., a Delaware corporation (the “Company”), and                           .


 


WHEREAS,
the Company believes it is essential to retain and attract qualified directors
and officers;


 


WHEREAS,
the Indemnitee is a director and/or officer of the Company;


 


WHEREAS,
both the Company and the Indemnitee recognize the increased risk of litigation
and other claims being asserted against directors and officers of public
companies;


 


WHEREAS,
the Company’s Bylaws (the “Bylaws”) require the Company to indemnify its
directors and officers to the extent permitted by the DGCL (as hereinafter
defined);


 


[WHEREAS,
the Indemnitee has been serving and intends to continue serving as a director
and/or officer of the Company in part in reliance on the Bylaws](1); [and]


 


WHEREAS,
in recognition of the Indemnitee’s need for (i) substantial protection
against personal liability  based on the
Indemnitee’s reliance on the Bylaws, (ii) specific contractual assurance
that the protection promised by the Bylaws will be available to the Indemnitee,
regardless of, among other things, any amendment to or revocation of the Bylaws
or any change in the composition of the Company’s Board of Directors (the “Board”)
or acquisition transaction relating to the Company, and (iii) an
inducement to continue to provide effective services to the Company as a
director and/or officer thereof, the Company wishes to provide for the
indemnification of the Indemnitee and to advance expenses to the Indemnitee to
the fullest extent permitted by law and as set forth in this Agreement, and, to
the extent insurance is maintained by the Company, to provide for the continued
coverage of the Indemnitee under the Company’s directors’ and officers’
liability insurance policies; [and]


 


[WHEREAS,
the Indemnitee is relying upon the rights
afforded under this Agreement in accepting Indemnitee’s position as a director,
officer or employee of the Company;](2)


 


NOW,
THEREFORE, in consideration of the premises contained herein and of the
Indemnitee continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the parties
hereto agree as follows:


 


1.                                      Certain
Definitions.


 


(a)                                 A “Change in Control”
shall be deemed to have occurred if:


 


(i)                                     any “person,” as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (the 


 


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“Exchange
Act”), other than (a) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company; (b) a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company; or (c) any
current beneficial stockholder or group, as defined by Rule 13d-5 of the
Exchange Act, including the heirs, assigns and successors thereof, of
beneficial ownership, within the meaning of Rule 13d-3 of the Exchange
Act, of securities possessing more than 50% of the total combined voting power
of the Company’s outstanding securities; hereafter becomes the “beneficial
owner,” as defined in Rule 13d-3 of the Exchange Act, directly or
indirectly, of securities of the Company representing 20% or more of the total
combined voting power represented by the Company’s then outstanding Voting
Securities;


 


(ii)                                  during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board and any new director whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least
two-thirds of the directors then 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 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 80% 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 of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company, in one
transaction or a series of transactions, of all or substantially all of the
Company’s assets.


 


(b)                                 “DGCL” shall mean the
General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended or interpreted; provided, however, that in the case of any
such amendment or interpretation, only to the extent that such amendment or
interpretation permits the Company to provide broader indemnification rights
than were permitted prior thereto.


 


(c)                                  “Expense” shall mean
attorneys’ fees and all other costs, expenses and obligations paid or incurred
in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing for any of the foregoing,
any Proceeding relating to any Indemnifiable Event.


 


(d)                                 “Indemnifiable Event”
shall mean any event or occurrence that takes place either prior to or after
the execution of this Agreement, related to the fact that the 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, employee, or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, or by reason of
anything done or not done by the Indemnitee in any such capacity.


 


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(e)                                  “Proceeding” shall
mean any threatened, pending or completed action, suit, investigation or
proceeding, and any appeal thereof, whether civil, criminal, administrative or
investigative and/or any inquiry or investigation, whether conducted by the
Company or any other party, that the Indemnitee in good faith believes might
lead to the institution of any such action.


 


(f)                                   “Reviewing Party”
shall mean any appropriate person or body consisting of a member or members of
the Company’s Board or any other person or body appointed by the Board
(including the special independent counsel referred to in Section 6) who
is not a party to the particular Proceeding with respect to which the
Indemnitee is seeking indemnification.


 


(g)                                  “Voting Securities”
shall mean any securities of the Company which vote generally in the election
of directors.


 


2.                                      Indemnification.  In the event the Indemnitee
was or is a party to or is involved (as a party, witness, or otherwise) in any
Proceeding by reason of (or arising in part out of) an Indemnifiable Event,
whether the basis of the Proceeding is the Indemnitee’s alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director or officer, the Company shall indemnify the Indemnitee to
the fullest extent permitted by the DGCL against any and all Expenses,
liability, and loss (including judgments, fines, ERISA excise taxes or
penalties, and amounts paid or to be paid in settlement, and any interest,
assessments, or other charges imposed thereon, and any federal, state, local,
or foreign taxes imposed on any director or officer as a result of the actual
or deemed receipt of any payments under this Agreement) (collectively, “Liabilities”)
reasonably incurred or suffered by such person in connection with such
Proceeding.  The Company shall provide
indemnification pursuant to this Section 2 as soon as practicable, but in
no event later than 30 days after it receives written demand from the
Indemnitee.  Notwithstanding anything in
this Agreement to the contrary and except as provided in Section 5 below,
the Indemnitee shall not be entitled to indemnification pursuant to this
Agreement (i) in connection with any Proceeding initiated by the
Indemnitee against the Company or any director or officer of the Company unless
the Company has joined in or consented to the initiation of such Proceeding or
(ii) on account of any suit in which judgment is rendered against the
Indemnitee pursuant to Section 16(b) of the Exchange Act for an
accounting of profits made from the purchase or sale by the Indemnitee of
securities of the Company.


 


3.                                      Advancement
of Expenses.  The Company
shall advance Expenses to the Indemnitee within 30 business days of such
request (an “Expense Advance”); provided, however, that if required by
applicable corporate laws such Expenses shall be advanced only upon delivery to
the Company of an undertaking by or on behalf of the Indemnitee to repay such
amount if it is ultimately determined that the Indemnitee is not entitled to be
indemnified by the Company; and provided further, that the Company shall make
such advances only to the extent permitted by law.  Expenses incurred by the Indemnitee while not
acting in his/her capacity as a director or officer, including service with
respect to employee benefit plans, may be advanced upon such terms and conditions
as the Board, in its sole discretion, deems appropriate.


 


4.                                      Review
Procedure for Indemnification.  Notwithstanding
the foregoing, (i) the obligations of the Company under Sections 2
and 3 above shall be subject to the condition that the Reviewing Party shall
not have determined (in a written opinion, in any case in which the 


 


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special independent counsel referred to in
Section 6 hereof is involved) that the Indemnitee would not be permitted
to be indemnified under applicable law, and (ii) the obligation of the
Company to make an Expense Advance pursuant to Section 3 above shall be
subject to the condition that, if, when and to the extent that the Reviewing
Party determines that the Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be
reimbursed by the Indemnitee (who hereby agrees to reimburse the Company) for
all such amounts theretofore paid; provided, however, that if the Indemnitee has
commenced legal proceedings in a court of competent jurisdiction pursuant to
Section 5 below to secure a determination that the Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that the Indemnitee would not be permitted to be indemnified under applicable
law shall not be binding and the 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 have lapsed).  The
Indemnitee’s obligation to reimburse the Company for Expense Advances pursuant
to this Section 4 shall be unsecured and no interest shall be charged
thereon.  The Reviewing Party shall be
selected by the Board, unless there has been a Change in Control, other than a
Change in Control which has been approved by a majority of the Company’s Board
who were directors immediately prior to such Change in Control, in which case
the Reviewing Party shall be the special independent counsel referred to in
Section 6 hereof.


 


5.                                      Enforcement
of Indemnification Rights.  If the Reviewing Party determines that the
Indemnitee substantively would not be permitted to be indemnified in whole or
in part under applicable law, or if the Indemnitee has not otherwise been paid
in full pursuant to Sections 2 and 3 above within 30 days after a
written demand has been received by the Company, the Indemnitee shall have the
right to commence litigation in any court in the State of Delaware having
subject matter jurisdiction thereof and in which venue is proper to recover the
unpaid amount of the demand (an “Enforcement Proceeding”) and, if
successful in whole or in part, the Indemnitee shall be entitled to be paid any
and all Expenses in connection with such Enforcement Proceeding.  The Company hereby consents to service of
process for such Enforcement Proceeding and to appear in any such Enforcement
Proceeding.  Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the Company and
the Indemnitee.


 


6.                                      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 who
were directors immediately prior to such Change in Control, then with respect
to all matters thereafter arising concerning the rights of the Indemnitee to
indemnity payments and Expense Advances under this Agreement or any other
agreement or under applicable law or the Company’s Certificate of Incorporation
or Bylaws now or hereafter in effect relating to indemnification for
Indemnifiable Events, the Company shall seek legal advice only from special
independent counsel selected by the Indemnitee and approved by the Company,
which approval shall not be unreasonably withheld.  Such special independent counsel shall not
have otherwise performed services for the Company or the Indemnitee, other than
in connection with such matters, within the last five years.  Such independent counsel shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Company or the Indemnitee in an action to determine the Indemnitee’s rights under
this Agreement.  Such counsel, among
other 


 


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things, shall render its written opinion to the
Company and the Indemnitee as to whether and to what extent the Indemnitee
would be permitted to be indemnified under applicable law.  The Company agrees to pay the reasonable fees
of the special independent counsel referred to above and to indemnify fully
such counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or the
engagement of special independent counsel pursuant to this Agreement.


 


7.                                      Partial
Indemnity.  If the
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Expenses and Liabilities, but not,
however, for all of the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion thereof to which the Indemnitee is
entitled.  Moreover, notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any or all Proceedings
relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice, the Indemnitee
shall be indemnified against all Expenses incurred in connection
therewith.  In connection with any
determination by the Reviewing Party or otherwise as to whether the Indemnitee
is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that the Indemnitee is not so entitled.


 


8.                                      Non-exclusivity.  The rights of the Indemnitee hereunder shall
be in addition to any other rights the Indemnitee may have under any statute,
provision of the Company’s Certificate of Incorporation or Bylaws, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.  To the extent that a change in
the DGCL permits greater indemnification by agreement than would be afforded
currently under the Company’s Certificate of Incorporation and Bylaws and this
Agreement, it is the intent of the parties hereto that the Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.


 


9.                                      Liability
Insurance.  To the
extent the Company maintains an insurance policy or policies providing
directors’ and officers’ liability insurance, the Indemnitee shall be covered
by such policy or policies, in accordance with its or their terms, to the
maximum extent of the coverage available for any director or officer of the
Company.


 


10.                               Settlement of Claims.  The Company shall not be liable to indemnify
the Indemnitee under this Agreement (a) for any amounts paid in settlement
of any action or claim effected without the Company’s written consent, which
consent shall not be unreasonably withheld; or (b) for any judicial award
if the Company was not given a reasonable and timely opportunity, at its expense,
to participate in the defense of such action.


 


11.                               No Presumption.  For purposes of this Agreement, to the
fullest extent permitted by law, the termination of any Proceeding, action,
suit or 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 the 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.


 


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12.                               Period of Limitations.  No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Company or any affiliate of
the Company against the Indemnitee, the Indemnitee’s spouse, heirs, executors
or personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, or such longer period as may be
required by state law under the circumstances, and any claim or cause of action
of the Company or its affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, such shorter period shall govern.


 


13.                               Amendment of this Agreement.  No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
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.  Except
as specifically provided herein, no failure to exercise or any delay in
exercising any right or remedy hereunder shall constitute a waiver thereof.


 


14.                               Primacy of Indemnification.  Notwithstanding that the Indemnitee may have
certain rights to indemnification, advancement of expenses and/or insurance
provided by other persons (collectively, the “Other Indemnitors”), the
Company:  (i) shall be the
indemnitor of first resort (i.e., its obligations to the Indemnitee are primary
and any obligation of the Other Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by the Indemnitee
are secondary); and (ii) shall be required to advance the full amount of
expenses incurred by the Indemnitee and shall be liable for the full amount of
all Expenses, without regard to any rights the Indemnitee may have against any
of the Other Indemnitors.  No advancement
or payment by the Other Indemnitors on behalf of the Indemnitee with respect to
any claim for which the Indemnitee has sought indemnification from the
corporation shall affect the immediately preceding sentence, and the Other
Indemnitors shall have a right of contribution and/or be subrogated to the
extent of such advancement or payment to all of the rights of recovery of the
Indemnitee against the Company.  The
Company and the Indemnitee agree that the Other Indemnitors are express third
party beneficiaries of the terms of this Section 14.


 


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 the Indemnitee (other than against the Other
Indemnitors), who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such
rights.


 


16.                               No Duplication of Payments.  Except as otherwise set forth in
Section 14 above, the Company shall not be liable under this Agreement to
make any payment in connection with any claim made against Indemnitee to the
extent the Indemnitee has otherwise actually received payment (under any
insurance policy, Bylaw, vote, agreement or otherwise) of the amounts otherwise
indemnifiable hereunder.


 


17.                               Binding Effect.  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, spouses, heirs, and personal and legal
representatives.  


 


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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 the
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place.  This
Agreement shall continue in effect regardless of whether the Indemnitee continues
to serve as a director or officer of the Company or of any other enterprise at
the Company’s request.


 


18.                               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) is 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
limitation, 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 intent manifested
by the provision held invalid, illegal or unenforceable.


 


19.                               Governing Law.  This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such State without giving
effect to the principles of conflicts of laws.


 


20.                               Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


21.                               Notices.  All notices, demands, and other
communications required or permitted hereunder shall be made in writing and
shall be deemed to have been duly given if delivered by hand, against receipt,
or mailed, postage prepaid, certified or registered mail, return receipt
requested, and addressed to the Company at:


 


ICU Medical, Inc.


Attention:                           


951 Calle Amanecer

San Clemente, CA 92673


 


and
to the Indemnitee at:


                                            


                                            


                                            


                                            


 


Notice
of change of address shall be effective only when done in accordance with this
Section.  All notices complying with this
Section shall be deemed to have been received on the date of delivery or
on the third business day after mailing.


 


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IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day first set forth above.


 


	
   

  	
  THE
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  ICU
  MEDICAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  
				



 


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