NILE THERAPEUTICS, INC. FORM OF INDEMNIFICATION AGREEMENT
Exhibit
10.14
This
Indemnification Agreement (“Agreement”) is effective as
of [DATE], by and between Nile Therapeutics, Inc., a Delaware corporation (the
“Company”), and
[NAME] (“Indemnitee”).
A.
The Company recognizes the substantial increase in corporate litigation in
general, subjecting directors, officers, employees, controlling persons,
fiduciaries and other agents and affiliates to expensive litigation risks at the
same time as the availability and coverage of liability insurance has been
severely limited.
B.
The current liability insurance protection
available to directors, officers, employees, controlling persons, fiduciaries
and other agents and affiliates of the Company may not be adequate under the
present circumstances, and directors, officers, employees, controlling persons,
fiduciaries and other agents and affiliates of the Company (or persons who may
be alleged or deemed to be the same), including the Indemnitee, may not be
willing to continue to serve or be associated with the Company in such
capacities without additional protection.
C.
The Company (a) desires to attract and retain the involvement of highly
qualified persons, such as Indemnitee, to serve and be associated with the
Company, and (b) accordingly, wishes to provide for the indemnification and
advancement of expenses to the Indemnitee to the maximum extent permitted by
law.
D.
[Indemnitee is an employee of [EMPLOYER] (“Employer”), has certain
rights to indemnification and/or insurance provided by Employer and certain of
its affiliates (collectively, the “Non-Company Indemnitors”)
that the Indemnitee and the Non-Company Indemnitors intend to be secondary to
the primary obligation of the Company to indemnify the Indemnitee as provided
herein, with the Company’s acknowledgement and agreement to the foregoing being
a material condition to the Indemnitee’s willingness to serve on the
Board.]
E. In
view of the considerations set forth above, the Company desires that Indemnitee
shall be indemnified and advanced expenses by the Company as set forth
herein.
In
consideration of the mutual promises and covenants contained herein, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Certain
Definitions.
(a) “Change in Control” shall be
deemed to have occurred if, on or after the date of this Agreement, (i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company
acting in such capacity or a corporation owned directly or indirectly by the
shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company, becomes the “beneficial owner” (as defined in
Rule 13d-3 under said Act), directly or indirectly, of securities of the
Company representing more than 50% of the total voting power represented by the
Company’s then outstanding Voting Securities (as defined below),
(ii) during any period of two (2) consecutive quarters, individuals who at
the beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination for
election by the Company’s shareholders was approved by a vote of at least two
thirds (2/3) of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
or (iii) the shareholders of the Company approve a merger or consolidation
of the Company with any other corporation other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or (iv) the shareholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of related
transactions) all or substantially all of the Company’s assets.
(b) “Claim” shall mean with
respect to a Covered Event (as defined below): any threatened,
asserted, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.
(c) References
to the “Company” shall
include, in addition to Nile Therapeutics, Inc., any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger to which Nile Therapeutics, Inc. (or any of its wholly owned
subsidiaries) is a party, which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees,
agents or fiduciaries, so that if Indemnitee is or was a director, officer,
employee, agent or fiduciary of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
employee benefit plan, 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.
(d) “Covered Event” shall mean any
event or occurrence related to the fact that Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company, or any subsidiary of the
Company, or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action or inaction on
the part of Indemnitee while serving in such capacity.
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(e) “Expenses” shall mean any and
all losses, claims, damages expenses and liabilities, joint or several
(including attorneys’ fees and all other costs, expenses and obligations
incurred in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, to be a witness
in or to participate in, any action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation), judgments, fines,
penalties 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, of any Claim and any federal, state, local or
foreign taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement.
(f) “Expense Advance” shall mean a
payment to Indemnitee pursuant to Section 3 of Expenses in advance of the
settlement of or final judgement in any action, suit, proceeding or alternative
dispute resolution mechanism, hearing, inquiry or investigation, which
constitutes a Claim.
(g) “Independent Legal Counsel”
shall mean an attorney or firm of attorneys, selected in accordance with the
provisions of Section 2(d) hereof, who shall not have otherwise performed
services for the Company or Indemnitee within the last three (3) years (other
than with respect to matters concerning the rights of Indemnitee under this
Agreement, or of other indemnitees under similar indemnity
agreements).
(h) 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, agent or fiduciary of the Company which imposes duties on, or
involves services by, such director, officer, employee, agent or fiduciary with
respect to an employee benefit plan, its participants or its 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.
(i) “Reviewing Party” shall mean,
subject to the provisions of Section 2(d), any Independent Legal Counsel
appointed by the Board of Directors in accordance with applicable law to review
the Company’s obligations hereunder and under applicable law.
(j) “Section” refers to a section
of this Agreement unless otherwise indicated.
(k) “Voting Securities” shall mean
any securities of the Company that vote generally in the election of
directors.
2.
Indemnification.
(a) Indemnification of
Expenses. Subject to the provisions of Section 2(b)
below, the Company shall indemnify Indemnitee for Expenses to the fullest extent
permitted by law if Indemnitee was or is or becomes a party to or witness or
other participant in, or is threatened to be made a party to or witness or other
participant in, any Claim (whether by reason of or arising in part out of a
Covered Event), including all interest, assessments and other charges incurred
in connection with or in respect of such Expenses.
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(b) Review of Indemnification
Obligations. Notwithstanding the foregoing, in the event any
Reviewing Party shall have determined in a written opinion that Indemnitee is
not entitled to be indemnified hereunder under applicable law, (i) the
Company shall have no further obligation under Section 2(a) to make any
payments to Indemnitee not made prior to such determination by such Reviewing
Party and (ii) the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all Expenses theretofore paid
in indemnifying Indemnitee (within thirty (30) days after such determination);
provided, however, that
if Indemnitee has commenced or thereafter commences legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee is entitled
to be indemnified hereunder under applicable law, any determination made by any
Reviewing Party that Indemnitee is not entitled to be indemnified hereunder
under applicable law shall not be binding and Indemnitee shall not be required
to reimburse the Company for any Expenses theretofore paid in indemnifying
Indemnitee until a final judicial determination is made with respect thereto (as
to which all rights of appeal therefrom have been exhausted or
lapsed). Indemnitee’s obligation to reimburse the Company for any
Expenses shall be unsecured and no interest shall be charged
thereon.
(c) Indemnitee Rights on
Unfavorable Determination; Binding Effect. If any Reviewing
Party determines that Indemnitee substantively is not entitled to be indemnified
hereunder in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation seeking an initial determination by the court or
challenging any such determination by such Reviewing Party or any aspect
thereof, including the legal or factual bases therefor, and, subject to the
provisions of Section 16, the Company hereby consents to service of process and
to appear in any such proceeding. Absent such litigation, any
determination by any Reviewing Party shall be conclusive and binding on the
Company and Indemnitee.
(d) Selection of Reviewing
Party; Change in Control. If there has not been a Change in
Control, any Reviewing Party shall be selected by the Board of Directors, and if
there has been such a Change in Control (other than a Change in Control which
has been approved by a majority of the Company’s Board of Directors who were
directors immediately prior to such Change in Control), any Reviewing Party with
respect to all matters thereafter arising concerning the rights of Indemnitee to
indemnification of Expenses under this Agreement or any other agreement or under
the Company’s Certificate of Incorporation or bylaws as now or hereafter in
effect, or under any other applicable law, if desired by Indemnitee, shall be
Independent Legal Counsel selected by the Indemnitee and approved by Company
(which approval shall not be unreasonably withheld). Such counsel, among other
things, shall render its written opinion to the Company and Indemnitee as to
whether and to what extent Indemnitee would be entitled to be indemnified
hereunder under applicable law and the Company agrees to abide by such
opinion. The Company agrees to pay the reasonable fees of the
Independent Legal Counsel referred to above and to indemnify fully such counsel
against any and all expenses (including attorneys’ fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto. Notwithstanding any other provision of this
Agreement, the Company shall not be required to pay Expenses of more than one
Independent Legal Counsel in connection with all matters concerning a single
Indemnitee.
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(e) Mandatory Payment of
Expenses. Notwithstanding any other provision of this
Agreement other than Section 10 hereof, to the extent that Indemnitee has
been successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any Claim, Indemnitee
shall be indemnified against all Expenses incurred by Indemnitee, or on its
behalf, in connection therewith.
(f) Contribution. If
the indemnification provided for in this Agreement is for any reason held by a
court of competent jurisdiction to be unavailable to an Indemnitee, then in lieu
of indemnifying Indemnitee thereunder, the Company shall contribute to the
amount paid or payable by Indemnitee as a result of such Expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and Indemnitee, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and Indemnitee in connection with the action
or inaction which resulted in such Expenses, as well as any other relevant
equitable considerations. In connection with the registration of the
Company’s securities, the relative benefits received by the Company and
Indemnitee shall be deemed to be in the same respective proportions that the net
proceeds from the offering (before deducting expenses) received by the Company
and Indemnitee, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
securities so offered. The relative fault of the Company and
Indemnitee shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or Indemnitee and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and Indemnitee agree that
it would not be just and equitable if contribution pursuant to this Section 2(f)
were determined by pro rata or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. In connection with the registration of the
Company’s securities, in no event shall Indemnitee be required to contribute any
amount under this Section 2(f) in excess of the net proceeds received by
Indemnitee from its sale of securities under such registration
statement. No person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(1) of the Securities Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent
misrepresentation.
3. Expense
Advances.
(a) Obligation to Make Expense
Advances. The Company shall make Expense Advances to
Indemnitee upon receipt of a written undertaking by or on behalf of the
Indemnitee to repay such amounts if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified therefor by the
Company.
(b) Form of
Undertaking. Any written undertaking by the Indemnitee to
repay any Expense Advances hereunder shall be unsecured and no interest shall be
charged thereon.
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4. Procedures
for Indemnification and Expense Advances.
(a) Timing of
Payments. All payments of Expenses (including without
limitation Expense Advances) by the Company to the Indemnitee pursuant to this
Agreement shall be made to the fullest extent permitted by law as soon as
practicable after written demand by Indemnitee therefor is presented to the
Company, but in no event later than thirty (30) days after such written demand
by Indemnitee is presented to the Company, except in the case of Expense
Advances, which shall be made no later than fifteen (15) days after such written
demand by Indemnitee is presented to the Company.
(b)
Notice/Cooperation by
Indemnitee. Indemnitee shall, as a condition precedent to
Indemnitee’s right to be indemnified or Indemnitee’s right to receive Expense
Advances 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 or Chief Executive Officer 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). In addition,
Indemnitee shall give the Company such information and cooperation as it may
reasonably require and 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.
(c) No Presumptions; Burden of
Proof. For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by this Agreement or applicable
law. In addition, neither the failure of any Reviewing Party to have
made a determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by any
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
this Agreement or applicable law, shall be a defense to Indemnitee’s claim or
create a presumption that Indemnitee has not met any particular standard of
conduct or did not have any particular belief. In connection with any
determination by any Reviewing Party or otherwise as to whether the Indemnitee
is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
(d) Notice to
Insurers. If, at the time of the receipt by the Company of a
notice of a Claim pursuant to Section 4(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt notice of the commencement of such Claim 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
Claim in accordance with the terms of such policies.
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(e) Selection of
Counsel. In the event the Company shall be obligated hereunder
to provide indemnification for or make any Expense Advances with respect to the
Expenses of any Claim, the Company, if appropriate, shall be entitled to assume
the defense of such Claim with counsel approved by Indemnitee (which approval
shall not be unreasonably withheld) upon the delivery to Indemnitee of written
notice of the Company’s 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 or expenses of separate counsel subsequently employed by
or on behalf of Indemnitee with respect to the same Claim; provided, however, that
(i) Indemnitee shall have the right to employ Indemnitee’s separate counsel
in any such Claim at Indemnitee’s expense and (ii) if (A) the employment of
separate 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 continue to retain such counsel to defend such
Claim, then the fees and expenses of Indemnitee’s separate counsel shall be
Expenses for which Indemnitee shall receive indemnification or Expense Advances
hereunder. Except to the extent Indemnitee shall engage separate
counsel, the Company shall have the right to conduct such defense as it sees fit
in its sole discretion, including the right to settle any claim, action or
proceeding against Indemnitee without the consent of Indemnitee, provided that
the terms of such settlement include either: (i) a full release of Indemnitee by
the claimant from all liabilities or potential liabilities under such
claim; or (ii), in the event such full release is not obtained, (x)
the terms of such settlement do not limit or adversely affect any
indemnification right Indemnitee may now, or hereafter, be entitled to under
this Agreement, the Company’s Certificate of Incorporation, bylaws, any
agreement, any vote of shareholders or disinterested directors, the General
Corporation Law of the State of Delaware (the “DGCL”) or otherwise 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, and (y) the terms of the
settlement do not place Indemnitee at any increased risk or exposure as a result
thereof.
5.
Additional
Indemnification Rights; Nonexclusivity.
(a) Scope. 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 Delaware corporation to indemnify a member of
its board of directors or an officer, employee, agent or fiduciary, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits afforded by such change. In the event of any change
in any applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, such change, 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 except
as set forth in Section 10(a) hereof.
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(b) Nonexclusivity. The
indemnification and the payment of Expense Advances provided by this Agreement
shall be in addition to any rights to which Indemnitee may be entitled under the
Company’s Certificate of Incorporation, its bylaws, any other agreement, any
vote of shareholders or disinterested directors, the DGCL, or
otherwise. The indemnification and the payment of Expense Advances
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though
subsequent thereto Indemnitee may have ceased to serve in such
capacity.
6.
No
Duplication of Payments. The
Company shall not be liable under this Agreement to make any payment in
connection with any Claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy, provision of
the Company’s Certificate of Incorporation, bylaws or otherwise) of the amounts
otherwise payable hereunder.
7.
Partial
Indemnification. If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of Expenses incurred in connection with any
Claim, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such Expenses to which
Indemnitee is entitled.
8.
Mutual
Acknowledgment. Both
the Company and Indemnitee acknowledge that in certain instances, federal law or
applicable public policy may prohibit the Company from indemnifying its
directors, officers, employees, agents or fiduciaries under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company
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.
9.
Liability
Insurance. To
the extent the Company maintains liability insurance applicable to directors,
officers, employees, agents or fiduciaries, Indemnitee shall be covered by such
policies in such a manner as to provide Indemnitee the same rights and benefits
as are provided 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; or of the Company’s key employees,
agents or fiduciaries, if Indemnitee is not an officer or director but is a key
employee, agent or fiduciary.
10.
Exceptions. Notwithstanding
any other provision of this Agreement, the Company shall not be obligated
pursuant to the terms of this Agreement:
(a) Excluded
Action or Omissions. To indemnify Indemnitee for Expenses
resulting from acts, omissions or transactions for which Indemnitee is
prohibited from receiving indemnification under this Agreement or applicable
law; provided,
however, that notwithstanding any limitation set forth in this
Section 10(a) regarding the Company’s obligation to provide
indemnification, Indemnitee shall be entitled under Section 3 to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that Indemnitee has engaged in acts, omissions or transactions for which
Indemnitee is prohibited from receiving indemnification under this Agreement or
applicable law.
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(b) Claims
Initiated by Indemnitee. To indemnify or make Expense Advances
to Indemnitee with respect to Claims initiated or brought voluntarily by
Indemnitee and not by way of defense, counterclaim or cross claim, except
(i) with respect to actions or proceedings brought to establish or enforce
a right to indemnification under this Agreement or any other agreement or
insurance policy or under the Company’s Certificate of Incorporation or bylaws
now or hereafter in effect relating to Claims for Covered Events, (ii) in
specific cases if the Board of Directors has approved the initiation or bringing
of such Claim, or (iii) as otherwise required under Section 145 of the
DGCL, regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, Expense Advances or insurance recovery, as the case may
be.
(c) Lack
of Good Faith. To indemnify Indemnitee for any Expenses
incurred or by the Indemnitee, or on its behalf, with respect to any action
instituted (i) by Indemnitee to enforce or interpret this Agreement, if a
court having jurisdiction over such action determines as provided in Section 13
that each of the material assertions made by the Indemnitee as a basis for such
action was not made in good faith or was frivolous, or (ii) by or in the
name of the Company to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each of
the material defenses asserted by Indemnitee in such action was made in bad
faith or was frivolous.
(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; provided,
however, that notwithstanding any limitation set forth in this
Section 10(d) regarding the Company’s obligation to provide
indemnification, Indemnitee shall be entitled under Section 3 to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that Indemnitee has violated said statute.
11.
Counterparts. This
Agreement may be executed in counterparts and by facsimile or electronic
transmission, each of which shall constitute an original and all of which,
together, shall constitute one instrument.
12.
Binding
Effect; Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors, assigns, including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business and/or assets of the Company, spouses,
heirs, and personal and legal representatives. The Company shall
require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business and/or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as a director, officer, employee, agent or fiduciary (as applicable) of
the Company or of any other enterprise at the Company’s
request.
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13.
Expenses
Incurred in Action Relating to Enforcement or Interpretation. In
the event that any action is instituted by Indemnitee under this Agreement or
under any liability insurance policies maintained by the Company to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be
indemnified for all Expenses incurred by Indemnitee, or on its behalf, with
respect to such action (including without limitation attorneys’ fees),
regardless of whether Indemnitee is ultimately successful in such action, unless
as a part of such action a court having jurisdiction over such action makes a
final judicial determination (as to which all rights of appeal therefrom have
been exhausted or lapsed) that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous; provided,
however, that until such final judicial determination is made, Indemnitee
shall be entitled under Section 3 to receive payment of Expense Advances
hereunder with respect to such action. In the event of an action
instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
indemnified for all Expenses incurred by Indemnitee, or on its behalf, in
defense of such action (including without limitation costs and expenses incurred
with respect to Indemnitee’s counterclaims and cross-claims made in such
action), unless as a part of such action a court having jurisdiction over such
action makes a final judicial determination (as to which all rights of appeal
therefrom have been exhausted or lapsed) that each of the material defenses
asserted by Indemnitee in such action was made in bad faith or was frivolous;
provided,
however, that until such final judicial determination is made, Indemnitee
shall be entitled under Section 3 to receive payment of Expense Advances
hereunder with respect to such action.
14.
[Non-Company
Indemnitors.
Notwithstanding anything set forth to the contrary herein, the Company hereby
acknowledges that Indemnitee has certain rights to indemnification, advancement
of expenses and/or insurance provided by the Non-Company Indemnitors. The
Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its
obligations to Indemnitee are primary and any obligation of the Non-Company
Indemnitors to advance Expenses or to provide indemnification for the same
Expenses incurred by Indemnitee are secondary), (ii) that it shall be required
to advance the full amount of Expenses incurred by Indemnitee and shall be
liable for the full amount of all Expenses as required by the terms of this
Agreement and the Company’s Certificate of Incorporation, Bylaws of the Company,
or any other agreement pursuant to which the Company is obligated to provide
indemnification to Indemnitee, without regard to any rights such Indemnitee may
have against the Non-Company Indemnitors, and, (iii) that it irrevocably
waives, relinquishes and releases the Non-Company Indemnitors from any and all
claims against the Non-Company Indemnitors for contribution, subrogation or any
other recovery of any kind in respect thereof. The Company further agrees
that no advancement or payment by the Non-Company Indemnitors on behalf of
Indemnitee with respect to any claim for which Indemnitee has sought
indemnification from the Company shall affect the foregoing and the Non-Company
Indemnitors shall have a right of contribution and/or be subrogated to the
extent of such advancement or payment to all of the rights of recovery of
Indemnitee against the Company. The Company and Indemnitee agree that the
Non-Company Indemnitors are express third party beneficiaries of the terms of
this Section 14.]
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15.
Notices. 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
signed for by the party addressed, on the date of such delivery, 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.
16. Consent
to Jurisdiction. The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction of
the courts of the State of Delaware 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 commenced, prosecuted
and continued only in the Court of Chancery of the State of Delaware in and for
Kent County, which shall be the exclusive and only proper forum for adjudicating
such a claim.
17. Severability. The
provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law. Furthermore, to the fullest
extent possible, the provisions of this Agreement (including without limitation
each portion of this Agreement containing any provision held to be invalid, void
or otherwise unenforceable, that is not itself invalid, void or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
18.
Choice
of Law. This
Agreement, and all rights, remedies, liabilities, powers and duties of the
parties to this Agreement, shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to principles of conflicts of
laws.
19.
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.
20.
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 to be or shall constitute a waiver of any other provisions hereof
(whether or not similar), nor shall such waiver constitute a continuing
waiver.
21. 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.
22.
No
Construction as Employment Agreement. Nothing
contained in this Agreement shall be construed as giving Indemnitee any right to
employment by the Company or any of its subsidiaries or affiliated
entities.
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Exhibit
10.14
IN WITNESS WHEREOF, the
parties hereto have executed this Indemnification Agreement as of the date first
above written.
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By:
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Name:
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Title:
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Address:
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4
Xxxx 0xx
Xxx., Xxxxx 000
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Xxx
Xxxxx, XX 00000
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Attn:
Chief Financial Officer
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Agreed
to and accepted by:
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INDEMNITEE:
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Name:
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Address:
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