THIS AGREEMENT made as of the ___ day of January, 2006.
Exhibit 4.9
THIS
AGREEMENT made as of the ___ day of January, 2006.
BETWEEN:
HELIX BIOPHARMA CORP., a
corporation pursuant to the
Canada Business Corporations
Act having an address at ▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇.
(the
“Company”)
AND:
_________________,
having an address at ______________ ____________________
(the
“Executive”)
WHEREAS:
A. The
Executive is a director or officer, or both, of the Company or a Company
Subsidiary (as hereinafter defined);
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B.
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The
Company has agreed to indemnify its directors and officers, and those of
its subsidiaries, in respect of actions or proceedings to which they may
be made a party by reason of being or having been a director or officer of
the Company or of a Company
Subsidiary;
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NOW
THEREFORE in consideration of the premises, the sum of $1.00 now paid by the
Executive to the Company and other good and valuable consideration, receipt and
adequacy whereof are hereby acknowledged, the parties do hereby agree as
follows:
1. Company
Subsidiaries
In this
Agreement, a “Company Subsidiary” shall mean any company which is a subsidiary
of the Company pursuant to the Canada Business Corporations
Act. In addition, for purposes of this Agreement, any entity of which the
Executive acts, has acted, or may hereafter act, as a director or officer, or in
a similar capacity, at the request of the Company, shall be deemed to be a
Company Subsidiary, provided that the indemnity herein contained shall extend
only to those costs, charges and expenses which arise out of acts and omissions
of the Executive in his or her capacity as a director or officer, or in a
similar capacity, of a Company Subsidiary during the time that the Executive
acted in such capacity pursuant to the request of the Company.
2. Indemnification
Except in
respect of an action by or on behalf of the Company or a Company Subsidiary to
procure a judgment in its favour, the Company shall indemnify the Executive and
his or her heirs and legal representatives (collectively, the “Indemnitees”),
against all costs, charges and expenses, including an
amount
paid to settle an action or satisfy a judgment, reasonably incurred by him or
her in respect of any civil, criminal or administrative action or proceeding to
which he or she is involved because of his or her association as a director or
officer, or as an individual acting in a similar capacity, of the Company or of
a Company Subsidiary, if:
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(a)
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the
Executive acted honestly and in good faith with a view to the best
interests of the Company, or, as the case may be, to the best interests of
the Company Subsidiary; and
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(b)
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in
the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, the Executive had reasonable grounds for
believing that his or her conduct was
lawful.
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3. Advance of
Costs
The
Company may advance moneys to the Executive for the costs, charges and expenses
of a proceeding referred to in section 2. The Executive shall repay the moneys
if the Executive does not fulfil conditions (a) and (b) of section
2.
4. Indemnification in
derivative actions
The
Company shall with the approval of a court indemnify the Indemnitees under
section , and advance money to the Indemnitees under section 3, in respect of an
action by or on behalf of the Company or a Company Subsidiary to procure a
judgment in its favour, to which the Indemnitees or any of them are made a party
by reason of the Executive being or having been a director or an officer, or an
individual acting in a similar capacity, of the Company or the Company
Subsidiary, against all costs, charges and expenses reasonably incurred by the
Indemnitees in connection with such action if the Executive fulfils the
conditions set out in paragraphs 2(a)and 2(b).
5. Agreement Extends to All
Past, Present and Future Director and Officer Positions
This
Agreement and the indemnities provided for herein shall extend to all director
and officer and similar positions which the Executive held prior to the date
hereof, now holds, or may hereafter hold, in the Company or a Company Subsidiary
from time to time.
6. Taxable
Benefits
If the
Indemnitees or any of them are required to include in their income, or in the
income of the estate of the Executive, any payment made under this Agreement for
the purpose of determining income tax payable by the Indemnitees or any of them
or the estate, the Company shall pay an amount by way of indemnity that will
fully indemnify the Indemnitees or estate for the amount of all liabilities
described in sections 2 and 4 above and all income taxes payable as a result of
the receipt of the indemnity payment.
7. Indemnification
Notice
Upon
receipt of a written request (the “Indemnification Notice”) by an Indemnitee for
indemnification under section 4 of this Agreement, the Company will forthwith
apply to the Ontario Superior Court of Justice, or other appropriate court of
competent jurisdiction, for approval of the requested indemnification, will
diligently proceed to obtain such approval and will take all other steps
necessary to provide the requested indemnification as soon as practicable
following receipt of the Indemnification Notice.
8. No
Invalidation
Any
failure by the Executive in his capacity as a director or officer, or in a
similar capacity, of the Company or a Company Subsidiary to comply with the
provisions of the constating documents or by-laws or rules of the Company or the
Company Subsidiary, or of the statute pursuant to which the Company or the
Company Subsidiary was incorporated or organized, will not invalidate any
indemnity to which he or she is entitled under this Agreement.
9. Representations and
Warranties of The Company
The
Company represents and warrants to the Executive, and acknowledges that the
Executive is relying on such representations and warranties, that:
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(a)
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The
Company has the requisite corporate power and authority to enter into this
Agreement and has taken all necessary steps to validly approve the
execution and delivery of this Agreement;
and
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(b)
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this
Agreement has been duly executed and delivered by the Company and is a
valid and binding obligation of the
Company.
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10. Legal
Advice
The
Executive hereby represents and warrants to the Company and acknowledges and
agrees that the Executive has had the opportunity to seek and was not prevented
nor discouraged by the Company from seeking independent legal advice prior to
the execution and delivery of this Agreement and that, in the event that the
Executive did not avail himself or herself of that opportunity prior to signing
this Agreement, the Executive did so voluntarily without any undue pressure by
the Company or otherwise and agrees that the Executive’s failure to obtain
independent legal advice shall not be used by the Executive as a defence to the
enforcement of the Executive’s obligations under this Agreement.
11. Miscellaneous
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(a)
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Enurement This
Agreement shall enure to the benefit of the Indemnitees and is binding on
the Company and its successors.
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(b)
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Assignment A
party to this Agreement may not assign his rights under this Agreement
without the prior written consent of the other party to this
Agreement.
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(c)
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Number and Gender
Wherever a singular or masculine expression is used in this
Agreement, that expression is deemed to include the plural, the feminine
or the body corporate where required
by
the context.
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(d)
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Severability If
any provision of this Agreement is or becomes unenforceable or invalid for
any reason whatever, such unenforceability or invalidity will not affect
the enforceability or
validity of remaining provisions of this Agreement and such provision will
be severable from the remainder of this
Agreement.
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(e)
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Headings The
headings in this Agreement are for convenience of reference only and do
not affect the interpretation of this
Agreement.
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(f)
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Governing Law
This Agreement shall be construed in accordance with the
laws of the Province of Ontario.
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(g)
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Entire
Agreement This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements
and understandings, oral or written, by and between any of the parties
hereto with respect to the subject matter
hereof.
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(h)
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Survival This Indemnity
will survive the resignation, removal, or other termination of the
Executive’s appointment as a director or officer of the Company or a
Company Subsidiary.
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IN
WITNESS WHEREOF the parties have executed and delivered this Agreement as of the
day and year first set forth above.
Per:
_________________________
Authorized
Signatory
_______________________________
Executive