Pisano, Nick
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`Attachments:
`
`Pisano, Nick
`Thursday, December 21, 2017 2:05 PM
`'James Gorman'
`Timothy Devlin; 'ggardella@gardellagrace.com'
`RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`Exhibit 10.2 to October 3, 2017 8-K (per note on page 5 of 8-K).pdf
`
`Dear James:
`
`Sorry for the delay, I needed to check with the client regarding the requests set forth in your December 18 e-
`mail below; a lot of people are out for the Christmas holiday. However, I did receive information this
`morning, and respond below:
`
`With respect to Fulfillium’s request in item (1) of your December 18 e-mail, we have obtained a copy of the
`Disclosure Schedules, and can produce them assuming a suitable protective order can be agreed upon. To
`our understanding the “complete” merger agreement is contained in the Enteromedics October 3, 2017, 8-K
`attached to my e-mail to you of December 14, 2017. All of the Exhibits to that agreement, identified in the
`footnote on page 5 of the 8-K (page 6 of the pdf) are appended to the Merger Agreement set forth in the 8-K,
`except for Exhibit 10.2 (attached) – which was retrieved as Exhibit 10.17 to Amendment No. 1 to the S-1 filed
`July 6, 2007 as recited in the footnote on page 5 There are no other “accompanying documents, ... exhibits,
`etc.” to the Merger Agreement that are not included in the publicly available 8K filing except for the
`Disclosure Schedules.
`
`With respect to item (2) of the December 18 e-mail, the request as written is overbroad and seeks
`production of “any side agreements between the acquiror” (Enteromedics, a non-party) and “any other
`entity” – and literally encompasses any third party with which Enteromedics has a “side agreement” about
`any topic, ever. ReShape Medical LLC obviously cannot agree to such a request, as it goes well beyond any
`reasonable or proportional scope of discovery and is directed to documents of ReShape Medical LLC’s new
`parent corporation that have never been in ReShape Medical, LLC’s (or ReShape Medical, Inc.’s) possession,
`custody or control.
`
`In the interests of cooperation, however, we deem the request set forth in item (2) to mean any “side
`agreements or indemnity agreements” between the acquiror (Enteromedics) and the ReShape Holder
`Committee (as defined in the 8-K) or ReShape Medical (Inc. or LLC) specific to the merger. Thusly narrowed,
`there are no such responsive documents not already included in the set of documents responsive to item 1,
`above.
`
`With respect to the proposed Rule 26(f) conference of counsel tomorrow, we are available noon Pacific (3:00
`pm Eastern). Alternatively, we could schedule the call for 10:00 am Pacific, 1:00 pm Eastern on any of
`December 26-29, if that would be better for your schedules. Please let us know your preference and we will
`circulate a dial-in number for the call.
`
`Regards,
`
`Nick
`
`1
`
`RESHAPE 1029
`
`

`

`
`Nicola A. Pisano
`Foley & Lardner LLP
`3579 Valley Centre Drive | Suite 300
`San Diego, CA 92130
`P 858.847.6877
`
`View My Bio
`Visit Foley.com
`
`
`From: James Gorman [mailto:jgorman@devlinlawfirm.com]
`Sent: Thursday, December 21, 2017 7:12 AM
`To: Pisano, Nick
`Cc: Timothy Devlin; 'ggardella@gardellagrace.com'; Gray, Justin E.; Patino, Joe
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Nick,
`
`Circling back here. Please let us know if you have any availability tomorrow for the 26(f). Thank you.
`
`Best,
`
`James
`
`James G Gorman III
`Devlin Law Firm LLC
`1306 N Broom Street, Suite 1
`Wilmington, DE 19806
`
`Office: (302) 449-9007
`jgorman@devlinlawfirm.com
`http://www.devlinlawfirm.com/
`
`***********************************************************
`The information contained in this communication is confidential and is intended only for the use of the intended addressee. It is the
`property of Devlin Law Firm LLC, and may contain information subject to attorney-client privilege and/or may constitute inside
`information. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be
`unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail to
`correspondence@devlinlawfirm.com, and destroy this communication and all copies thereof, including all attachments.
`
`From: James Gorman
`Sent: Monday, December 18, 2017 3:07 PM
`To: NPisano@foley.com
`Cc: Timothy Devlin; 'ggardella@gardellagrace.com'; JEGray@foley.com; JPatino@foley.com
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Dear Nick,
`
`Our production request is as follows:
`
`1. The complete Merger Agreement, including all accompanying documents, disclosure schedules, exhibits, etc. that are
`not included in the publicly available 8K filing;
`2. Any side agreements, especially between the acquiror and any other entity such as the Holder Committee, any
`indemnity agreements, and any insurance for reps and warranties.
`
`
`2
`
`RESHAPE 1029
`
`

`

`Please let us know if you see any issues with this request. Also, we are okay with the draft Protective Order that you
`sent us. Regarding the Rule 26(f) conference, does Wednesday at 10am PST (1pm EST) work for you? Thank you.
`
`Best regards,
`
`James
`
`James G Gorman III
`Devlin Law Firm LLC
`1306 N Broom Street, Suite 1
`Wilmington, DE 19806
`
`Office: (302) 449-9007
`jgorman@devlinlawfirm.com
`http://www.devlinlawfirm.com/
`
`***********************************************************
`The information contained in this communication is confidential and is intended only for the use of the intended addressee. It is the
`property of Devlin Law Firm LLC, and may contain information subject to attorney-client privilege and/or may constitute inside
`information. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be
`unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail to
`correspondence@devlinlawfirm.com, and destroy this communication and all copies thereof, including all attachments.
`
`From: NPisano@foley.com [NPisano@foley.com]
`Sent: Friday, December 15, 2017 8:41 PM
`To: James Gorman
`Cc: Timothy Devlin; 'ggardella@gardellagrace.com'; JEGray@foley.com; JPatino@foley.com
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Dear James:
`
`Further to my e-mail below, we have determined that we should be able produce the Disclosure Schedules
`referenced in the Merger Agreement shortly after the parties agree to a suitable protective order for the
`case. The full text of the Merger Agreement is set out in the attached 8-K.
`
`To that end, attached is a draft Protective Order modeled after Magistrate Judge Abram’s preferred order,
`which is available at: http://www.cacd.uscourts.gov/honorable-paul-l-abrams Please let us have your
`comments on the attached draft at your earliest convenience.
`
`We are available for a Rule 26(f) conference next week, any time Wednesday through Friday (December 20-
`22) after 10:00 am Pacific. Please let us know which day/time works for your schedule.
`
`Regards,
`
`Nick
`
`Nicola A. Pisano
`Foley & Lardner LLP
`3579 Valley Centre Drive | Suite 300
`San Diego, CA 92130
`P 858.847.6877
`
`View My Bio
`
`3
`
`RESHAPE 1029
`
`

`

`Visit Foley.com
`
`
`From: Pisano, Nick
`Sent: Thursday, December 14, 2017 10:31 AM
`To: 'James Gorman'
`Cc: Timothy Devlin; ggardella@gardellagrace.com; Gray, Justin E.; Patino, Joe
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Dear James:
`
` I
`
` am looking into availability of what I understand to be the requested documents (i.e., non-privileged
`disclosure schedules mentioned on page 3 of the Enteromedics 8-K of October 3, 2017) in the near-term,
`subject to agreement on a Protective Order. If there are other documents that Fulfillium will be seeking to
`determine whether it will agree to the proposed substitution of ReShape Medical LLC for merged-out
`ReShape Medical, Inc., please let me know. Obviously, the more voluminous the request, the more difficulty
`there will be in promptly accommodating that request as we head into the holidays.
`
` I
`
` will get back to you later today regarding the disclosure schedules mentioned above, and we can then
`jointly decide on a day/time for a Rule 26(f) call next week.
`
`Regards,
`
`Nick
`
`Nicola A. Pisano
`Foley & Lardner LLP
`3579 Valley Centre Drive | Suite 300
`San Diego, CA 92130
`P 858.847.6877
`
`View My Bio
`Visit Foley.com
`
`
`From: James Gorman [mailto:jgorman@devlinlawfirm.com]
`Sent: Thursday, December 14, 2017 5:32 AM
`To: Pisano, Nick
`Cc: Timothy Devlin; ggardella@gardellagrace.com; Gray, Justin E.; Patino, Joe
`Subject: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Hi Nick,
`
`We have some follow up questions regarding the possibility of a 26f. Would your side be able to do a 26f in the next
`week? Also, would your side produce the relevant documents right away with a discovery request or would you take the
`30 days? Thank you.
`
`
`4
`
`RESHAPE 1029
`
`

`

`Best,
`
`James
`
`James G Gorman III
`Devlin Law Firm LLC
`1306 N Broom Street, Suite 1
`Wilmington, DE 19806
`
`Office: (302) 449-9007
`jgorman@devlinlawfirm.com
`http://www.devlinlawfirm.com/
`
`***********************************************************
`The information contained in this communication is confidential and is intended only for the use of the intended addressee. It is the
`property of Devlin Law Firm LLC, and may contain information subject to attorney-client privilege and/or may constitute inside
`information. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be
`unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail to
`correspondence@devlinlawfirm.com, and destroy this communication and all copies thereof, including all attachments.
`
`The preceding email message may be confidential or protected by the attorney-client privilege. It is not
`intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in
`error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or
`destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley &
`Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and
`may not be relied upon by any other party.
`
`5
`
`RESHAPE 1029
`
`

`

`Form of Indemnification Agreement
`
`Page 1 of 11
`
`EX-10.17 4 dex1017.htm FORM OF INDEMNIFICATION AGREEMENT
`
`EXHIBIT 10.17
`
`INDEMNIFICATION AGREEMENT
`INDEMNIFICATION AGREEMENT (this “Agreement”) dated as of , 2007 by and between
`EnteroMedics Inc. (the “Company”), a Delaware corporation, and (“Indemnitee”):
`
`WHEREAS, competent persons are reluctant to serve a corporation as a director or in another capacity unless they
`are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims
`and actions against them arising out of their service to and activities on behalf of corporations;
`
`WHEREAS, the Board of Directors of the Company has determined that the ability to attract and retain such persons
`is in to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there
`will be increased certainty of such protection in the future; and
`
`WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify
`such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free
`from undue concern that they will not be so indemnified; and
`
`WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the
`Company on the condition that Indemnitee be so indemnified;
`
`NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth below and other
`good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as
`follows:
`
`1. Definitions. For purposes of this Agreement the following terms shall have the meanings set forth below:
`(a) “Board” shall mean the Board of Directors of the Company.
`(b) “Corporate Status” describes the status of a person who is or was a director, officer, employee, agent or
`fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other
`enterprise which such person is or was serving at the express written request of the Company.
`(c) “Disinterested Director” means a director of the Company who is not and was not a party to the
`Proceeding in respect of which indemnification is sought by Indemnitee.
`(d) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee
`benefit plan or other enterprise of which Indemnitee is or was serving at the express written request of the Company
`as a director, officer, employee, agent or fiduciary.
`
`https://www.sec.gov/Archives/edgar/data/1371217/000119312507151101/dex1017.htm
`
`12/18/2017
`
`RESHAPE 1029
`
`

`

`Form of Indemnification Agreement
`
`Page 2 of 11
`
`(e) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of
`experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage,
`delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with
`prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in a
`Proceeding.
`(f) “Good Faith” shall mean Indemnitee having acted in good faith and in a manner Indemnitee reasonably
`believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal Proceeding,
`having had no reasonable cause to believe Indemnitee’s conduct was unlawful.
`(g) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of
`corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or
`Indemnitee in any matter material to either such party or (ii) any other party to the Proceeding giving rise to a claim
`for indemnification hereunder. Notwithstanding the foregoing, the term “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 Indemnitee in an action to determine Indemnitee’s rights under this
`Agreement.
`(h) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation,
`administrative hearing or any other actual, threatened or completed proceeding whether civil, criminal, administrative
`or investigative, other than one initiated by Indemnitee. For purposes of the foregoing sentence, a “Proceeding” shall
`not be deemed to have been initiated by Indemnitee where Indemnitee seeks pursuant to Section 8 of this Agreement
`to enforce Indemnitee’s rights under this Agreement.
`
`2. Term of Agreement. This Agreement shall continue until and terminate upon the later of: (a) 10 years after the
`date that Indemnitee has ceased to serve as a director, officer, employee, agent or fiduciary of the Company or of any
`other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which Indemnitee served at
`the express written request of the Company or (b) the final termination of all pending Proceedings in respect of which
`Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced
`by Indemnitee pursuant to Section 8 of this Agreement relating thereto.
`
`3. Services by Indemnitee, Notice of Proceedings.
`(a) Services. Indemnitee agrees to serve as a director of the Company. Indemnitee may at any time and for any
`reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation
`of law).
`
`https://www.sec.gov/Archives/edgar/data/1371217/000119312507151101/dex1017.htm
`
`12/18/2017
`
`RESHAPE 1029
`
`

`

`Form of Indemnification Agreement
`
`Page 3 of 11
`
`(b) Notice of Proceeding. Indemnitee agrees promptly to notify the Company in writing upon being served
`with any summons, citation, subpoena, complaint, indictment, information or other document relating to any
`Proceeding or matter that may be subject to indemnification or advancement of Expenses covered hereunder.
`
`https://www.sec.gov/Archives/edgar/data/1371217/000119312507151101/dex1017.htm
`
`12/18/2017
`
`RESHAPE 1029
`
`

`

`Form of Indemnification Agreement
`
`Page 4 of 11
`
`4. Indemnification
`(a) In General. In connection with any Proceeding, the Company shall indemnify and advance Expenses to
`Indemnitee as provided in this Agreement and to the fullest extent permitted by applicable law in effect on the date
`hereof and to such greater extent as applicable law may thereafter from time to time permit.
`(b) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the
`rights of indemnification provided in this Section 4(b) if, by reason of Indemnitee’s Corporate Status, Indemnitee is,
`or is threatened to be made, a party to any Proceeding, other than a Proceeding by or in the right of the Company.
`Indemnitee shall be indemnified against Expenses, judgments, penalties, fines and amounts paid in settlements
`actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any
`claim, issue or matter therein, if Indemnitee acted in Good Faith.
`(c) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of
`indemnification provided in this Section 4(c) if, by reason of Indemnitee’s Corporate Status, Indemnitee is or is
`threatened to be made a party to any Proceeding brought by or in the right of the Company to procure a judgment in
`its favor. Indemnitee shall be indemnified against Expenses, judgments, penalties and amounts paid in settlement,
`actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding if
`Indemnitee acted in Good Faith. Notwithstanding the foregoing, no such indemnification shall be made in respect of
`any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the
`Company if applicable law prohibits such indemnification; provided, however, that, if applicable law so permits,
`indemnification shall nevertheless be made by the Company in such event if and only to the extent that the Court of
`Chancery of the State of Delaware, or the court in which such Proceeding shall have been brought or is pending, shall
`determine.
`(d) Indemnification of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of
`this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is
`successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified to the maximum extent
`permitted by law against all Expenses, judgments, penalties, fines and amounts paid in settlement, actually and
`reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly
`successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims,
`issues or matters in such Proceeding, the Company shall indemnify Indemnitee to the maximum extent permitted by
`law, against all Expenses, judgments, penalties, fines and amounts paid in settlement, actually and reasonably
`incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or
`matter. For purposes of this Section 4(d) and without limitation, the termination of any claim, issue or matter in such
`a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue
`or matter, so long as there has been no finding (either adjudicated or pursuant to Section 6) that Indemnitee did not
`act in Good Faith.
`
`https://www.sec.gov/Archives/edgar/data/1371217/000119312507151101/dex1017.htm
`
`12/18/2017
`
`RESHAPE 1029
`
`

`

`Form of Indemnification Agreement
`
`Page 5 of 11
`
`(e) Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the
`extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness in any Proceeding, Indemnitee shall
`be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
`connection therewith.
`(f) Assumption of Defense and Settlement. Notwithstanding any other provision of this Agreement, with
`respect to any such Proceeding as to which the Indemnitee gives notice to the Company of the commencement
`thereof:
`
`(1) the Company will be entitled to participate therein at its own expense;
`(2) the Company, jointly with any other indemnifying party similarly notified, shall be entitled to assume
`the defense thereof, with counsel satisfactory to the Indemnitee. If the Company assumes the defense of the
`Indemnitee, it shall notify the Indemnitee, and after the Indemnitee receives such notice, the Company shall not
`be liable to the Indemnitee under this Agreement for any Expenses incurred by the Indemnitee after the date
`such notice was received. The Indemnitee shall be entitled to employ Indemnitee’s own counsel at Indemnitee’s
`own expense. Nevertheless, the Company shall pay for Indemnitee’s own counsel if (1) the Company agrees to
`do the same, (2) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between
`the Company and the Indemnitee regarding the defense of such action, or (3) the Company shall not in fact have
`employed counsel to assume the defense of the 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 the Indemnitee shall have
`reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee
`regarding the defense of such Proceeding; and
`(3) the Company shall not be liable to the Indemnitee under this Agreement for any amounts paid in
`settlement of any Proceeding unless the Company consents to such settlement. The Company shall not settle any
`Proceeding in any manner that would impose any penalty or limitation on the Indemnitee without the
`Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold their consent
`to any proposed settlement.]
`
`5. Advancement of Expenses. Notwithstanding any provision to the contrary in Section 6, the Company shall
`advance all reasonable Expenses which, by reason of Indemnitee’s Corporate Status, were incurred by or on behalf of
`Indemnitee in connection with any Proceeding, within 20 days after the receipt by the Company of a statement or
`statements from Indemnitee requesting such advance or advances, whether prior to or after final disposition of such
`Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall be
`preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses if it shall ultimately be
`determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advance and undertakings to
`repay pursuant to this Section 5 shall be unsecured and interest free.
`
`https://www.sec.gov/Archives/edgar/data/1371217/000119312507151101/dex1017.htm
`
`12/18/2017
`
`RESHAPE 1029
`
`

`

`Form of Indemnification Agreement
`
`Page 6 of 11
`
`6. Procedures for Determination of Entitlement to Indemnification
`(a) Initial Request. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company
`a written request, including therein or therewith such documentation and information as is reasonably available to
`Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to
`indemnification. The Secretary of the Company shall promptly advise the Board in writing that Indemnitee has
`requested indemnification.
`(b) Method of Determination. A determination (if required by applicable law) with respect to Indemnitee’s
`entitlement to indemnification shall be made by the Board by a majority vote of Disinterested Directors, even though
`less than a quorum. In the event that there are no Disinterested Directors or if such Disinterested Directors so direct,
`the determination shall be made by Independent Counsel in a written opinion to the Board, a copy of which shall be
`delivered to Indemnitee.
`(c) Selection, Payment, Discharge, of Independent Counsel. In the event the determination of entitlement to
`indemnification is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent
`Counsel shall be selected, paid and discharged in the following manner:
`(1) The Independent Counsel shall be selected by the Board, and the Company shall give written notice to
`Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected.
`(2) Following the initial selection described in clause (1) of this Section 6(c), Indemnitee or the Company,
`as the case may be, may, within seven days after such written notice of selection has been given, deliver to the
`other party a written objection to such selection. Such objection may be asserted only on the ground that the
`Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in this
`Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper
`and timely objection, the person so selected shall act as Independent Counsel. If such written objection is made,
`the Independent Counsel so selected may not serve as Independent Counsel unless and until a court has
`determined that such objection is without merit.
`(3) Either the Company or Indemnitee may petition any court of competent jurisdiction if the parties have
`been unable to agree on the selection of Independent Counsel within 20 days after submission by Indemnitee of
`a written request for indemnification pursuant to Section 6(a) of this Agreement. Such petition may request a
`determination whether an objection to the party’s selection is without merit and/or seek the appointment as
`Independent Counsel of a person selected by the Court or by such other person as the Court shall designate. A
`person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement.
`(4) The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by
`such Independent Counsel in connection with acting pursuant to this Agreement, and the Company shall pay all
`reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which
`such Independent Counsel was selected or appointed.
`
`https://www.sec.gov/Archives/edgar/data/1371217/000119312507151101/dex1017.htm
`
`12/18/2017
`
`RESHAPE 1029
`
`

`

`Form of Indemnification Agreement
`
`Page 7 of 11
`
`(5) Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 8(c) of this
`Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity
`(subject to the applicable standards of professional conduct then prevailing).
`(d) Cooperation. Indemnitee shall cooperate with the person, persons or entity making the determination with
`respect to Indemnitee’s entitlement to indemnification under this Agreement, including providing to such person,
`persons or entity upon reasonable advance request any documentation or information which is not privileged or
`otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to
`such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in
`so cooperating with the person, persons or entity making such determination shall be borne by the Company
`(irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby
`indemnifies and agrees to hold Indemnitee harmless therefrom.
`(e) Payment. If it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be
`made within 10 days after such determination.
`
`7. Presumptions and Effect of Certain Proceedings
`(a) Burden of Proof. In making a determination with respect to entitlement to Indemnification hereunder, the
`person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification
`under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 6(a), and
`the Company shall have the burden of proof to overcome that presumption in connection with the making by any
`person, persons or entity of any determination contrary to that presumption.
`(b) Effect of Other Proceedings. The termination of any Proceeding or of any claim, issue or matter therein, by
`judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as
`otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification
`or create a presumption that Indemnitee did not act in Good Faith.
`(c) Reliance as Safe Harbor. For purposes of any determination of Good Faith, Indemnitee shall be deemed to
`have acted in Good Faith if Indemnitee’s action is based on the records or books of account of the Enterprise,
`including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the
`course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or
`reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert
`selected with reasonable care by the Enterprise. The provisions of this Section 7(c) shall not be deemed to be
`exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the
`applicable standard of conduct set forth in this Agreement.
`(d) Actions of Others. The knowledge and/or actions, or failure to act, of any director, officer, agent or
`employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to
`indemnification under this Agreement.
`
`https://www.sec.gov/Archives/edgar/data/1371217/000119312507151101/dex1017.htm
`
`12/18/2017
`
`RESHAPE 1029
`
`

`

`Form of Indemnification Agreement
`
`Page 8 of 11
`
`8. Remedies of Indemnitee
`(a) Application. This Section 8 shall apply in the event of a Dispute. For purposes of this article, “Dispute”
`shall mean any of the following events:
`(1) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to
`indemnification under this Agreement;
`(2) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement;
`(3) if the determination of entitlement to be made pursuant to Section 6(b) of this Agreement is to be made
`by the Board and the Board has not made such determination within 60 days after receipt by the Company of the
`request for indemnification;
`(4) if the determination of entitlement to be made pursuant to Section 6(b) of this Agreement is to be made
`by Independent Counsel and Independent Counsel has not made such determination within 90 days after receipt
`by the Company of the request for indemnification;
`(5) payment of indemnification is not made pursuant to Section 4(e) of this Agreement within 10 days after
`receipt by the Company of a written request therefore; or
`(6) payment of indemnification is not made within 10 days after a determination has been made that
`Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to
`Section 6 of this