CORMEDIX INC. INDEMNIFICATION AGREEMENT
Exhibit 10.17
TABLE
OF CONTENTS
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Page
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1.
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Indemnity
of Indemnitee
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1 | ||
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2.
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Contribution
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2 | ||
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3.
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Advancement
of Expenses
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4 | ||
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4.
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Procedures
and Presumptions for Determination of Entitlement to
Indemnification
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4 | ||
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5.
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Remedies
of Indemnitee
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6 | ||
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6.
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Non-Exclusivity;
Survival of Rights; Insurance; Primacy of Indemnification;
Subrogation
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7 | ||
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7.
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Exception
to Right of Indemnification
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8 | ||
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8.
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Duration
of Agreement
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9 | ||
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9.
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Security
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9 | ||
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10.
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Enforcement
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9 | ||
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11.
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Definitions
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9 | ||
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12.
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Severability
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10 | ||
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13.
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Modification
and Waiver
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11 | ||
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14.
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Notice
By Indemnitee
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11 | ||
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15.
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Notices
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11 | ||
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16.
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Counterparts
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11 | ||
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17.
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Headings
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11 | ||
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18.
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Governing
Law and Consent to Jurisdiction
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12 | ||
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THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is made and
entered into as of _____________, 20__ between CorMedix Inc., a Delaware
corporation (the “Company”), and _______________
(“Indemnitee”).
WHEREAS,
highly competent persons have become more reluctant to serve corporations as
directors or in other capacities 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 the corporation;
WHEREAS,
the Amended and Restated By-Laws of the Company (the “Bylaws”) require
indemnification of the directors and officers of the Company, and Indemnitee may
also be entitled to indemnification pursuant to the General Corporation Law of
the State of Delaware (“DGCL”);
WHEREAS,
the Bylaws and the DGCL expressly provide that the indemnification provisions
set forth therein are not exclusive, and thereby contemplate that contracts may
be entered into between the Company and members of the Company’s board of
directors (the “Board”),
officers and other persons with respect to indemnification;
WHEREAS,
the Board has determined that, in order to attract and retain qualified
individuals, the Company will attempt to maintain on an ongoing basis, at its
sole expense, liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities;
WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons;
WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental 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;
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
to the 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,
this Agreement is a supplement to and in furtherance of the Bylaws and Amended
and Restated Certificate of Incorporation of the Company (the “Charter”) and any resolutions
adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder;
NOW,
THEREFORE, in consideration of Indemnitee’s agreement to serve as a director or
officer of the Company from and after the date hereof, the parties hereto agree
as follows:
1. Indemnity of
Indemnitee. The Company hereby agrees to hold harmless and
indemnify Indemnitee to the fullest extent permitted by law, as such may be
amended from time to time. In furtherance of the foregoing
indemnification, and without limiting the generality thereof:
(a) 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 l(a) if, by
reason of his Corporate Status (as defined in Section 11 of this
Agreement), the Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding (as defined in Section 11 of this
Agreement) other than a Proceeding by or in the right of the
Company. Pursuant to this Section 1(a),
Indemnitee shall be indemnified against all Expenses (as defined in Section 11 of this
Agreement), judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him, or on his behalf, in connection with such
Proceeding or any claim, issue or matter therein, if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and with respect to any criminal
Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was
unlawful.
(b) Proceedings by or in the
Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 1(b) if, by
reason of his Corporate Status, the Indemnitee is, or is threatened to be made,
a party to or participant in any Proceeding brought by or in the right of the
Company. Pursuant to this Section 1(b),
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection with
such Proceeding if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company; provided, however, if applicable law so provides, no
indemnification against such Expenses 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 unless and to the extent that the Court of
Chancery of the State of Delaware shall determine that such indemnification may
be made.
(c) Indemnification for Expenses
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 his Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified to the maximum extent
permitted by law, as such may be amended from time to time, against all Expenses
actually and reasonably incurred by him or on his 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 against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or
matter. For purposes of this Section 1(c) 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.
2. Contribution.
(a) Whether
or not the indemnification provided in Section 1 hereof is
available, in respect of any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee (or would be
if joined in such action, suit or proceeding), the Company shall pay, in the
first instance, the entire amount of any judgment or settlement of such action,
suit or proceeding without requiring Indemnitee to contribute to such payment
and the Company hereby waives and relinquishes any right of contribution it may
have against Indemnitee. The Company shall not enter into any
settlement of any action, suit or proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such action, suit or
proceeding) unless such settlement provides for a full and final release of all
claims asserted against Indemnitee.
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(b) Without
diminishing or impairing the obligations of the Company set forth in the
preceding subparagraph, if, for any reason, Indemnitee shall elect or be
required to pay all or any portion of any judgment or settlement in any
threatened, pending or completed Proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such Proceeding), the Company
shall contribute to the amount of Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by Indemnitee in
proportion to the relative benefits received by the Company and all directors,
officers, employees and agents of the Company, other than Indemnitee, who are
jointly liable with Indemnitee (or would be if joined in such Proceeding), on
the one hand, and Indemnitee, on the other hand, from the transaction from which
such Proceeding arose; provided, however, that the proportion determined on the
basis of relative benefit may, to the extent necessary to conform to law, be
further adjusted by reference to the relative fault of the Company and all
directors, officers, employees and agents of the Company other than Indemnitee
who are jointly liable with Indemnitee (or would be if joined in such
Proceeding), on the one hand, and Indemnitee, on the other hand, in connection
with the events that resulted in such expenses, judgments, fines or settlement
amounts, as well as any other equitable considerations which the applicable law
may require to be considered. The relative fault of the Company and
all directors, officers, employees and agents of the Company, other than
Indemnitee, who are jointly liable with Indemnitee (or would be if joined in
such Proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary and the degree to which
their conduct is active or passive.
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from any
claims of contribution which may be brought by directors, officers, employees or
agents of the Company, other than Indemnitee, who may be jointly liable with
Indemnitee.
(d) To
the fullest extent permissible under applicable law, if the indemnification
provided for in this Agreement is determined by a court of competent
jurisdiction to be unavailable to Indemnitee for any reason whatsoever, the
Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, in connection with
any claim relating to an indemnifiable event under this Agreement, in such
proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect (i) the relative benefits received by the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of the Company (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s); provided, however, that such contribution
shall not be required where such determination by a court of competent
jurisdiction is due to (i) the failure of Indemnitee to meet the standard of
conduct set forth in Section 1(a) of this
Agreement, or (ii) any limitation on indemnification set forth in Section 6 or Section 7 of this
Agreement.
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3. Advancement of
Expenses. Notwithstanding any other provision of this
Agreement, the Company shall advance all Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate
Status within thirty (30) days after the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by a written undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses. Any advances and
undertakings to repay pursuant to this Section 3 shall be
unsecured and interest free.
4. Procedures and Presumptions
for Determination of Entitlement to Indemnification. It is the
intent of this Agreement to secure for Indemnitee rights of indemnity that are
as favorable as may be permitted under the DGCL and public policy of the State
of Delaware. Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any question as to
whether Indemnitee is entitled to indemnification under this
Agreement:
(a) 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 upon
receipt of such a request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification. Notwithstanding the
foregoing, any failure of Indemnitee to provide such a request to the Company,
or to provide such a request in a timely fashion, shall not relieve the Company
of any liability that it may have to Indemnitee unless, and to the extent that,
such failure actually and materially prejudices the interests of the
Company.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 4(a)
hereof, a determination with respect to Indemnitee’s entitlement thereto shall
be made in the specific case by one of the following four methods, which shall
be at the election of the Board: (1) by a majority vote of the
Disinterested Directors, even though less than a quorum, (2) by a committee of
Disinterested Directors designated by a majority vote of the Disinterested
Directors, even though less than a quorum, (3) if there are no Disinterested
Directors or if the Disinterested Directors so direct, by Independent Counsel in
a written opinion to the Board, a copy of which shall be delivered to the
Indemnitee, or (4) if so directed by the Board, by the stockholders of the
Company.
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(c) If
the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 4(b) hereof,
the Independent Counsel shall be selected as provided in this Section
4(c). The Independent Counsel shall be selected by the
Board. Indemnitee may, within 10 days after such written notice of
selection shall have been given, deliver to the Company a written objection to
such selection; provided, however, that 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 Section 11 of 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 a written
objection is made and substantiated, the Independent Counsel selected may not
serve as Independent Counsel unless and until such objection is withdrawn or a
court has determined that such objection is without merit. If, within
20 days after submission by Indemnitee of a written request for indemnification
pursuant to Section
4(a) hereof, the Board does not select a method other than a
determination by Independent Counsel and no Independent Counsel shall have been
selected and not objected to, either the Company or Indemnitee may petition the
Court of Chancery of the State of Delaware for resolution of any objection which
shall have been made by the Indemnitee to the Company’s selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the court or by such other person as the court shall designate, and the
person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 4(b)
hereof. 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 Section 4(b) hereof,
and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 4(c),
regardless of the manner in which such Independent Counsel was selected or
appointed.
(d) If
the person, persons or entity empowered or selected under Section 4 to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within sixty (60) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law; provided,
however, that such 60-day period may be extended for a reasonable time, not to
exceed an additional thirty (30) days, if the person, persons or entity making
such determination with respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate documentation and/or
information relating thereto; and provided, further, that the foregoing
provisions of this Section 4(d) shall
not apply if the determination of entitlement to indemnification is to be made
by the stockholders pursuant to Section 4(b) of this
Agreement and if (A) within fifteen (15) days after receipt by the Company of
the request for such determination, the Board or the Disinterested Directors, if
appropriate, resolve to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy-five (75)
days after such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within fifteen (15) days after such receipt
for the purpose of making such determination, such meeting is held for such
purpose within sixty (60) days after having been so called and such
determination is made thereat.
(e) Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, 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 Independent Counsel, member of
the Board or stockholder of the Company shall act reasonably and in good faith
in making a determination regarding the Indemnitee’s entitlement to
indemnification under this Agreement. 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.
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(f) In
the event that any Proceeding to which Indemnitee is a party is resolved in any
manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such Proceeding with or without payment of money or
other consideration) it shall be presumed that Indemnitee has been successful on
the merits or otherwise in such Proceeding. Anyone seeking to
overcome this presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.
(g) 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 and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
5. Remedies of
Indemnitee.
(a) In
the event that (i) a determination is made pursuant to Section 4 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 3 of this
Agreement, (iii) no determination of entitlement to indemnification is made
pursuant to Section
4(b) of this Agreement within 90 days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made
pursuant to this Agreement within ten (10) days after receipt by the Company of
a written request therefor or (v) payment of indemnification is not made within
ten (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 4 of
this Agreement, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware of Indemnitee’s entitlement to such
indemnification. Indemnitee shall commence such proceeding seeking an
adjudication within 180 days following the date on which Indemnitee first has
the right to commence such proceeding pursuant to this Section
5(a). The Company shall not oppose Indemnitee’s right to seek
any such adjudication.
(b) In
the event that a determination shall have been made pursuant to Section 4(b) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section 5 shall be
conducted in all respects as a de novo trial on the merits, and Indemnitee shall
not be prejudiced by reason of the adverse determination under Section
4(b).
(c) If
a determination shall have been made pursuant to Section 4(b) of this
Agreement that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination in any judicial proceeding commenced pursuant to
this Section 5
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s misstatement not materially
misleading in connection with the application for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
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(d) In
the event that Indemnitee, pursuant to this Section 5, seeks a
judicial adjudication of his rights under, or to recover damages for breach of,
this Agreement, or to recover under any directors’ and officers’ liability
insurance policies maintained by the Company, the Company shall pay on his
behalf, in advance, any and all Expenses actually and reasonably incurred by him
in such judicial adjudication provided that the Company receives a written
undertaking by or on behalf of Indemnitee to repay any Expenses so advanced if
it shall ultimately be determined that Indemnitee is not entitled to such
indemnification, advancement of Expenses or insurance recovery, as the case may
be.
(e) The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 5 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court that the Company is bound by
all the provisions of this Agreement. The Company shall indemnify
Indemnitee against any and all Expenses and, if requested by Indemnitee, shall
(within ten (10) days after receipt by the Company of a written request
therefor) advance, to the extent not prohibited by law, such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action
brought by Indemnitee for indemnification or advance of Expenses from the
Company under this Agreement or under any directors’ and officers’ liability
insurance policies maintained by the Company provided that the Company receives
a written undertaking by or on behalf of Indemnitee to repay any Expenses so
advanced if it shall ultimately be determined that Indemnitee is not entitled to
such indemnification, advancement of Expenses or insurance recovery, as the case
may be.
(f) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior to
the final disposition of the Proceeding.
6. Non-Exclusivity; Survival of
Rights; Insurance; Primacy of Indemnification; Subrogation.
(a) The
rights of indemnification as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Charter, the Bylaws, any agreement, a vote of
stockholders, a resolution of directors of the Company or
otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. To
the extent that a change in the DGCL, whether by statute or judicial decision,
permits greater indemnification than would be afforded currently under the
Charter, the Bylaws and this Agreement, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or
remedy.
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(b) To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, managers, employees, agents or
fiduciaries of the Company or of any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise that such person serves at the request of the Company, 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, officer,
manager, employee, agent or fiduciary under such policy or
policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(c) In
the event of any 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 papers required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable
the Company to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
(e) The
Company's obligation to indemnify or advance Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
manager, employee or agent of any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of expenses from such other corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise.
7. Exception to Right of
Indemnification. Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against Indemnitee:
(a) for
which payment has actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess
beyond the amount paid under any insurance policy or other indemnity provision;
or
(b) for
an accounting of profits made from the purchase and sale (or sale and purchase)
by Indemnitee of securities of the Company within the meaning of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or similar provisions of
state statutory law or common law; or
(c) in
connection with any Proceeding (or any part of any Proceeding) initiated by
Indemnitee, including any Proceeding (or any part of any Proceeding) initiated
by Indemnitee against the Company or its directors, officers, employees or other
indemnitees, unless (i) the Board authorized the Proceeding (or any part of any
Proceeding) prior to its initiation or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law.
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8. Duration of
Agreement. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is a director or
officer of the Company (or is or was serving at the request of the Company as a
director, officer, manager, employee or agent of another corporation,
partnership, joint venture, limited liability company, trust or other
enterprise) and shall continue thereafter so long as Indemnitee shall be subject
to any Proceeding (or any proceeding commenced under Section 5 hereof) by
reason of his Corporate Status, whether or not he is acting or serving in any
such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs, executors and personal and legal representatives.
9. Security. To
the extent requested by Indemnitee and approved by the Board, the Company may at
any time and from time to time provide security to Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit, funded trust
or other collateral. Any such security, once provided to Indemnitee,
may not be revoked or released without the prior written consent of the
Indemnitee.
10. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumes the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director or officer of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as a director or
officer of the Company.
(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
11. Definitions. For
purposes of this Agreement:
(a) “Corporate Status” describes
the status of a person who is or was a director, officer, manager, employee,
agent or fiduciary of the Company or of any other corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other
Enterprise that such person is or was serving at the express written request of
the Company.
(b) “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.
(c) “Enterprise” shall mean the
Company and any other corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise that Indemnitee is or
was serving at the express written request of the Company as a director,
officer, manager, employee, agent or fiduciary.
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(d) “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,
participating, or being or preparing to be a witness in a Proceeding, or
responding to, or objecting to, a request to provide discovery in any
Proceeding. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding, including without
limitation the premium, security for, and other costs relating to any cost bond,
supersede as bond, or other appeal bond or its equivalent. Expenses,
however, shall not include amounts paid in settlement by Indemnitee or the
amount of judgments or fines against Indemnitee.
(e) “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 (other than with respect to matters concerning
Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), 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. The
Company agrees to pay the reasonable fees of the Independent Counsel referred to
above and to fully indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(f) “Proceeding” includes any
threatened, pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed proceeding, whether brought by or in the
right of the Company or otherwise and whether civil, criminal, administrative or
investigative, in which Indemnitee was, is or will be involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a director or officer
of the Company, by reason of any action taken by him or of any inaction on his
part while acting as a director or officer of the Company, or by reason of the
fact that he is or was serving at the request of the Company as a director,
officer, manager, employee, agent or fiduciary of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other Enterprise; in each case whether or not he is acting or serving in
any such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement, including one pending on
or before the date of this Agreement, but excluding one initiated by an
Indemnitee pursuant to Section 5 of this
Agreement to enforce his rights under this Agreement.
12. Severability. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision. Without
limiting the generality of the foregoing, this Agreement is intended to confer
upon Indemnitee indemnification rights to the fullest extent permitted by
applicable laws. In the event any provision hereof conflicts with any
applicable law, such provision shall be deemed modified, consistent with the
aforementioned intent, to the extent necessary to resolve such
conflict.
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13. Modification and
Waiver. No supplement, modification, termination 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.
14. Notice By
Indemnitee. Indemnitee agrees promptly to notify the Company
in writing upon being served with or otherwise receiving any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification covered
hereunder. The failure to so notify the Company shall not relieve the
Company of any obligation which it may have to Indemnitee under this Agreement
or otherwise unless and only to the extent that such failure or delay materially
prejudices the Company.
15. Notices. All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, (c) five (5) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (d) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications
shall be sent:
(a) To
Indemnitee at the address set forth below Indemnitee signature
hereto.
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(b)
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To
the Company at:
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▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
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Attention: Chief
Executive Officer
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or to
such other address as may have been furnished to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.
16. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by
facsimile signature and in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
17. Headings. The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
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18. Governing Law and Consent to
Jurisdiction. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules. The Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the
Chancery Court of the State of Delaware (the “Delaware Court”), and not in
any other state or federal court in the United States of America or any court in
any other country, (ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) waive any objection to the laying of venue
of any such action or proceeding in the Delaware Court, and (iv) waive, and
agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court has been brought in an improper or inconvenient
forum.
SIGNATURE
PAGE TO FOLLOW
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
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By:
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Name:
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Title:
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INDEMNITEE
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By:
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Name:
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Address:
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