EX 10.8
CALBATECH INC.
INDEMNIFICATION AGREEMENT - XXXXX XxXXXXX
This Indemnification Agreement ("AGREEMENT") is made as of
this 1st day of January 2004, by and between CalbaTech, Inc., a
Nevada corporation (the "COMPANY"), and Xxxxx XxXxxxx ("INDEMNITEE").
WHEREAS, the Company and Indemnitee recognize the
significant cost of directors' and officers' liability insurance and
the general reductions in the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the
substantial increase in corporate litigation in general, subjecting
officers and directors to expensive litigation risks at the same time
as the coverage of liability insurance has been severely limited; and
WHEREAS, the Company desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to
serve as officers and directors of the Company and to indemnify its
officers and directors so as to provide them with the maximum
protection permitted by law.
NOW, THEREFORE, in consideration for Indemnitee's services
as an officer or director of the Company, the Company and Indemnitee
hereby agree as follows:
1. INDEMNIFICATION.
(a) Third Party Proceedings. The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be
made a party to any threatened, pending or completed action, suit,
proceeding or any alternative dispute resolution mechanism, whether
civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the
Company, or any subsidiary of the Company, or by reason of the fact
that Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld) actually and reasonably incurred
by Indemnitee in connection with such action, suit or proceeding if
Indemnitee 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 action or proceeding, had
no reasonable cause to believe Indemnitee's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that Indemnitee's conduct was
unlawful.
(b) Proceedings By or in the Right of the Company. The
Company shall indemnify Indemnitee if Indemnitee was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company or any
subsidiary of the Company to procure a judgment in its favor by
reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or any subsidiary of the Company,
or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) and, to the
fullest extent permitted by law, amounts paid in settlement actually
and reasonably incurred by Indemnitee in connection with the defense
or settlement of such action or suit if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged to be liable
to the Company unless and only to the extent that the Court of
Chancery of the State of Nevada or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery of the State of Nevada or
such other court shall deem proper.
(c) Mandatory Payment of Expenses. To the extent that
Indemnitee has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Subsections (a) and
(b) of this Section 1, or in defense of any claim, issue or matter
therein, Indemnitee shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by Indemnitee in
connection therewith.
2. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) Advancement of Expenses. The Company shall advance all
expenses incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of any civil or criminal action, suit
or proceeding referenced in Section 1(a) or (b) hereof (but not
amounts actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the
Company as authorized hereby. The advances to be made hereunder shall
be paid by the Company to Indemnitee within thirty (30) days
following delivery of a written request therefor by Indemnitee to the
Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to his right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable
of any claim made against Indemnitee for which indemnification will
or could be sought under this Agreement. Notice to the Company shall
be directed to the President of the Company at the address shown on
the signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). Notice shall be
deemed received three business days after the date postmarked if sent
by domestic certified or registered mail, properly addressed, five
business days if sent by airmail to a country outside of North
America; otherwise notice shall be deemed received when such notice
shall actually be received by the Company. In addition, Indemnitee
shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee's power.
(c) Procedure. Any indemnification and advances provided for
in Section 1 and this Section 2 shall be made no later than thirty
(30) days after receipt of the written request of Indemnitee. If a
claim under this Agreement, under any statute, or under any provision
of the Company's Certificate of Incorporation or Bylaws providing for
indemnification, is not paid in full by the Company within thirty
(30) days after a written request for payment thereof has first been
received by the Company, Indemnitee may, but need not, at any time
thereafter bring an action against the Company to recover the unpaid
amount of the claim and, subject to Section 12 of this Agreement,
Indemnitee shall also be entitled to be paid for the expenses
(including attorneys' fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that Indemnitee has
not met the standards of conduct which make it permissible under
applicable law for the Company to indemnify Indemnitee for the amount
claimed. However, Indemnitee shall be entitled to receive interim
payments of expenses pursuant to Subsection 2(a) unless and until
such defense may be finally adjudicated by court order or judgment
from which no further right of appeal exists. It is the parties'
intention that if the Company contests Indemnitee's right to
indemnification, the question of Indemnitee's right to
indemnification shall be for the court to decide, and neither the
failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Company (including
it Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its stockholders) that
Indemnitee has not met such applicable standard of conduct, shall
create a presumption that Indemnitee has or has not met the
applicable standard of conduct.
(d) Notice to Insurers. If, at the time of the receipt of a
notice of a claim pursuant to Section 2(b) 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.
(e) Selection of Counsel. In the event the Company shall be
obligated under Section 2(a) hereof to pay the expenses of any
proceeding against Indemnitee, the Company, if appropriate, shall be
entitled to assume the defense of such proceeding, with counsel
approved by Indemnitee, upon the delivery to Indemnitee of written
notice of its election to do so. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to Indemnitee
under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same proceeding, provided that (i) Indemnitee
shall have the right to employ his counsel in any such proceeding at
Indemnitee's expense; and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the
conduct of any such defense, or (C) the Company shall not, in fact,
have employed counsel to assume the defense of such proceeding, then
the fees and expenses of Indemnitee's counsel shall be at the expense
of the Company.
3. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) Scope. Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify the Indemnitee to
the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other
provisions of this Agreement, the Company's Certificate of
Incorporation, the Company's Bylaws or by statute. In the event of
any change, after the date of this Agreement, in any applicable law,
statute, or rule which expands the right of a Nevada corporation to
indemnify a member of its board of directors or an officer, such
changes shall be, ipso facto, within the purview of Indemnitee's
rights and Company's obligations, under this Agreement. In the event
of any change in any applicable law, statute or rule which narrows
the right of a Nevada corporation to indemnify a member of its board
of directors or an officer, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement
shall have no effect on this Agreement or the parties' rights and
obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which
Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or
disinterested Directors, the General Corporation Law of the State of
Nevada, or otherwise, both as to action in Indemnitee's official
capacity and as to action in another capacity while holding such
office. The indemnification provided under this Agreement shall
continue as to Indemnitee for any action taken or not taken while
serving in an indemnified capacity even though he may have ceased to
serve in such capacity at the time of any action, suit or other
covered proceeding.
4. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of the expenses, judgments, fines or penalties
actually or reasonably incurred by him in the investigation, defense,
appeal or settlement of any civil or criminal action, suit or
proceeding, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of
such expenses, judgments, fines or penalties to which Indemnitee is
entitled.
5. MUTUAL ACKNOWLEDGEMENT. Both the Company and Indemnitee
acknowledge that in certain instances, Federal law or applicable
public policy may prohibit the Company from indemnifying its
directors and officers under this Agreement or otherwise. Indemnitee
understands and acknowledges that the Company has undertaken or may
be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a
court in certain circumstances for a determination of the Company's
right under public policy to indemnify Indemnitee.
6. OFFICER AND DIRECTOR LIABILITY INSURANCE. The Company shall,
from time to time, make the good faith determination whether or not
it is practicable for the Company to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing
the officers and directors of the Company with coverage for losses
from wrongful acts, or to ensure the Company's performance of its
indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such
insurance coverage against the protection afforded by such coverage.
In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to
the most favorably insured of the Company's directors, if Indemnitee
is a director; or of the Company's officers, if Indemnitee is not a
director of the Company but is an officer. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain
such insurance if the Company determines in good faith that such
insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, if
the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit, or if Indemnitee is covered by
similar insurance maintained by a subsidiary or parent of the Company.
7. SEVERABILITY. Nothing in this Agreement is intended to
require or shall be construed as requiring the Company to do or fail
to do any act in violation of applicable law. The Company's
inability, pursuant to court order, to perform its obligations under
this Agreement shall not constitute a breach of this Agreement. The
provisions of this Agreement shall be severable as provided in this
Section 7. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction,
then the Company shall nevertheless indemnify Indemnitee to the full
extent permitted by any applicable portion of this Agreement that
shall not have been invalidated, and the balance of this Agreement
not so invalidated shall be enforceable in accordance with its terms.
8. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance
expenses to Indemnitee with respect to proceedings or claims
initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other
statute or law or otherwise as required under the Nevada General
Corporation Law, but such indemnification or advancement of expenses
may be provided by the Company in specific cases if the Board of
Directors has approved the initiation or bringing of such suit; or
(b) Lack of Good Faith. To indemnify Indemnitee for any
expenses incurred by the Indemnitee with respect to any proceeding
instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made in
good faith or was frivolous; or
(c) Insured Claims. To indemnify Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) which have been paid directly to Indemnitee by an
insurance carrier under a policy of officers' and directors'
liability insurance maintained by the Company.
(d) Claims Under Section 16(b). To indemnify Indemnitee for
expenses and the payment of profits arising from the purchase and
sale by Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor
statute.
9. CONSTRUCTION OF CERTAIN PHRASES.
(a) For purposes of this Agreement, references to the
"Company" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or agents, so
that if Indemnitee is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request
of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, Indemnitee shall stand in the same position under
the provisions of this Agreement with respect to the resulting or
surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to "serving at
the request of the Company" shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or
involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner "not opposed to
the best interests of the Company" as referred to in this Agreement.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Company and its successors and assigns, and shall inure to the
benefit of Indemnitee and Indemnitee's estate, heirs, legal
representatives and assigns.
12. ATTORNEYS' FEES. In the event that any action is instituted
by Indemnitee under this Agreement to enforce or interpret any of the
terms hereof, Indemnitee shall be entitled to be paid all court costs
and expenses, including reasonable attorneys' fees, incurred by
Indemnitee with respect to such action, unless as a part of such
action, the court of competent jurisdiction determines that each of
the material assertions made by Indemnitee as a basis for such action
were not made in good faith or were frivolous. In the event of an
action instituted by or in the name of the Company under this
Agreement or to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be paid all court costs
and expenses, including attorneys' fees, incurred by Indemnitee in
defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part
of such action the court determines that each of Indemnitee's
material defenses to such action were made in bad faith or were
frivolous.
13. NOTICE. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be
deemed duly given (i) if delivered by hand and receipted for by the
party addressee, on the date of such receipt, or (ii) if mailed by
domestic certified or registered mail with postage prepaid, on the
third business day after the date postmarked. Addresses for notice to
either party are as shown on the signature page of this Agreement, or
as subsequently modified by written notice.
14. CONSENT TO JURISDICTION. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the
State of Nevada for all purposes in connection with any action or
proceeding which arises out of or relates to this Agreement and agree
that any action instituted under this Agreement shall be brought only
in the state courts of the State of Nevada.
15. CHOICE OF LAW. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the State of
Nevada, as applied to contracts between Nevada residents entered into
and to be performed entirely within Nevada without regard to the
conflict of law principles thereof.
16. PERIOD OF LIMITATIONS. No legal action shall be brought and
no cause of action shall be asserted by or in the right of the
Company against Indemnitee, Indemnitee's estate, spouse, heirs,
executors or personal or legal representatives after the expiration
of two years from the date of accrual of such cause of action, and
any claim or cause of action of the Company shall be extinguished and
deemed released unless asserted by the timely filing of a legal
action within such two-year period; provided, however, that if any
shorter period of limitations is otherwise applicable to any such
cause of action, such shorter period shall govern.
17. SUBROGATION. In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all
documents required and shall do all acts that may be necessary to
secure such rights and to enable the Company effectively to bring
suit to enforce such rights.
18. AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be effective
unless it is in writing signed by both 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.
19. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth
the entire understanding between the parties hereto and supersedes
and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof
between the parties hereto
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
CALBATECH, INC.
S/s Xxxxxx Xxxxx
Signature of Authorized
Signatory
Xxxxxx Xxxxx, President
Name and Title
AGREED TO AND ACCEPTED:
INDEMNITEE:
S/s Xxxxx XxXxxxx
Signature
Xxxxx XxXxxxx, CEO
Name and Title
