FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.21
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into as of
___, by and between Tenby Pharma Inc., a Delaware corporation (the “Company”), and
___(“Indemnitee”).
WHEREAS, the Board of Directors of the Company (the “Board of Directors”) has determined that
it is essential to the Company to retain and attract as directors and officers the most capable
persons available;
WHEREAS, Indemnitee currently serves or has been asked by the Company to serve as a director
and/or officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other
claims currently being asserted against directors and officers of corporations;
WHEREAS, in recognition of Indemnitee’s need for substantial protection against personal
liability, and in order to induce Indemnitee to serve or to continue to serve as a director and/or
officer of the Company, the Company has agreed to indemnify and to advance expenses and costs
incurred by Indemnitee in connection with any claims, suits or other proceedings arising out of his
service, to the fullest extent permitted by law; and
WHEREAS, the parties by this Agreement desire to set forth their agreement regarding
indemnification and advancement of expenses.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions. For purposes of this Agreement:
(a) “Change in Control” shall be deemed to have occurred if after the Effective Date (i) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other
than a trustee or other fiduciary holding securities under an employee benefit plan of the Company
or any holder of the Company’s voting securities as of the Effective Date, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty percent (20%) or more of the combined voting power of
the Company’s then outstanding voting securities without the prior approval of at least two-thirds
(2/3) of the members of the Board of Directors in office immediately prior to such person attaining
such percentage interest, (ii) there occurs a proxy contest, or the Company is a party to a merger,
consolidation, sale of assets, plan of liquidation or other reorganization not approved by at least
two-thirds (2/3) of the members of the Board of Directors then in office, and as a consequence of
which members of the Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter, or (iii) during any period of
two (2) consecutive years, other than as a result of an event described in clause (a)(ii) of this
Section 1, individuals who at the beginning of such period constituted the Board of Directors
(including for this purpose any new director whose election or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then
still in office who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
(b) “Corporate Status” means the status of a person who is or was a director, trustee,
officer, employee, agent or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise for which such person is or
was serving at the request of the Company.
(c) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification or advancement of Expenses is sought by
Indemnitee.
(d) “Effective Date” means the date set forth in the first paragraph of this Agreement.
(e) “Enterprise” means the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the request
of the Company as a director, trustee, officer, employee, agent or fiduciary.
(f) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(g) “Expenses” shall include all reasonable out-of-pocket 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 (i) prosecuting,
defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness
in a Proceeding and (ii) establishing a right to indemnification in accordance with this Agreement.
(h) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither is, nor in the past five (5) 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 agreements), or (ii) any other party to or witness in 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.
(i) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative (including on appeal), except
one pending or completed on or before the Effective Date, unless otherwise specifically agreed in
writing by the Company and Indemnitee.
In addition, in this Agreement, (i) references to “fines” shall include any excise tax
assessed with respect to any employee benefit plan, (ii) references to “serving at the request of
the Company” shall include any service as an officer, director, committee member or official which
imposes duties on, or involves services by, such person, with respect to an employee benefit plan,
its participants or beneficiaries, and (iii) action taken or omitted to be taken by Indemnitee with
respect to an employee benefit plan in the performance of Indemnitee’s duties for a purpose
reasonably believed to be in the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to be a purpose that is “not opposed to the best interests of
the Company”.
Section 2. Indemnification — General. The Company shall indemnify, and advance
Expenses to, Indemnitee (a) to the fullest extent permitted by applicable law, as amended from time
to time and (b) without limitation of clause (a), as provided in this Agreement; provided,
however, that no
change in applicable law after the Effective Date shall have the effect of reducing the
benefits available to Indemnitee hereunder based on applicable law as in effect on the Effective
Date. The rights of Indemnitee provided in this Section 2 shall include, without limitation, the
rights set forth in the other sections of this Agreement, and any additional rights to
indemnification permitted by (i) Section 145 of the Delaware General Corporation Law (the
“DGCL”), (ii) the charter or bylaws of the Company, (iii) a resolution of stockholders or
directors, or (iv) any other agreement to which the Company is a party.
Section 3. 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 3 if, by
reason of his Corporate Status, he is, or is threatened to be, made a party to or a witness in any
threatened, pending, or completed Proceeding, other than a Proceeding by or in the right of the
Company. Pursuant to this Section 3, Indemnitee shall be indemnified against all judgments,
penalties, fines and amounts paid in settlement and all Expenses actually and reasonably incurred
by him or on his behalf in connection with a Proceeding by reason of his Corporate Status if
Indemnitee acted in good faith and in a manner in which Indemnitee reasonably believed was in (or
not opposed to) the best interests of the Company, and (b) in the case of any criminal Proceeding,
Indemnitee had no reasonable cause to believe that his conduct was unlawful.
Section 4. Proceedings by or in the Right of the Company. Indemnitee shall
be entitled to the rights of indemnification provided in this Section 4 if, by reason of his
Corporate Status, he is, or is threatened to be, made a party to or a witness in any threatened,
pending or completed Proceeding brought by or in the right of the Company to procure a judgment in
its favor. Pursuant to this Section 4, Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection with such Proceeding if
Indemnitee acted in good faith and in a manner in which Indemnitee reasonably believed was 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 a court of appropriate jurisdiction shall determine that
such indemnification may be made.
Section 5 Court-Ordered Indemnification. Notwithstanding any other provision of this
Agreement, a court of appropriate jurisdiction, upon application of Indemnitee and such notice as
the court shall require, may order indemnification in the following circumstances: (a) if it
determines Indemnitee is entitled to reimbursement under Section 145 of the DGCL, the court shall
order indemnification, in which case Indemnitee shall be entitled to recover the expenses of
securing such reimbursement, or (b) if it determines that Indemnitee is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether or not Indemnitee
has met the standards of conduct set forth in Section 145 of the DGCL, the court may order such
indemnification as the court shall deem proper.
Section 6. 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, made a party to and is successful, on the merits
or otherwise, in the defense of any Proceeding, he shall be indemnified for all Expenses 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 under this
Section 6 for all Expenses incurred by him or on his behalf in connection with each successfully
resolved claim, issue or matter, allocated on a reasonable and proportionate basis. For purposes of
this Section 6 and without limitation of the foregoing, 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.
Section 7. Advancement of Expenses. The Company shall advance all Expenses incurred by
or on behalf of Indemnitee in connection with any Proceeding to which Indemnitee is, or is
threatened to be, made a party or a witness by reason of Indemnitee’s Corporate Status, within
twenty (20) 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 and without regard to Indemnitee’s ultimate entitlement to indemnification under
this Agreement. Such statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by a written affirmation by Indemnitee
of Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the
Company as authorized by applicable law and by this Agreement has been met and a written
undertaking by or on behalf of Indemnitee, in such form as the Company may from time to time
reasonably require or as may be required under applicable law as in effect at the time of the
execution thereof, to reimburse the portion of any Expenses advanced to Indemnitee relating to
claims, issues or matters in the Proceeding as to which it shall ultimately be established that the
standard of conduct has not been met. The undertaking to reimburse Expenses required by this
Section 7 shall be an unlimited general obligation by or on behalf of Indemnitee and shall be
accepted without reference to Indemnitee’s financial ability to repay such advanced Expenses and
without any requirement to post security therefor. Advances shall be unsecured and interest free.
Section 8. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification and payment of Expenses under this Agreement (other than advance
of Expenses, which shall be governed by Section 7), 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 omission to notify the Company will not relieve the
Company from any liability that it may have to Indemnitee under this Agreement, except and only to
the extent set forth in Section 11(a). The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 8(a), a determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall promptly be made in the specific case as follows: (i) if a Change in
Control shall have occurred, by Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to Indemnitee, or (ii) if a Change of Control shall not have
occurred, (A) by the Board of Directors (or a duly authorized committee thereof) by a majority vote
of Disinterested Directors (in either case, even though less than a quorum), (B) if there are no
Disinterested Directors or, a majority of the Disinterested Directors so directs, by Independent
Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee, or (C) if so directed by a majority of the members of the Board of Directors, by the
stockholders of the Company.
(c) If an Independent Counsel is retained pursuant to this Section 8 and a Change of Control
has not occurred, Independent Counsel shall be selected by the Board of Directors, with the
approval of Indemnitee, which approval will not be unreasonably delayed, conditioned or withheld.
If an Independent Counsel is retained pursuant to this Section 8 and a Change of Control has
occurred, Independent Counsel shall be selected by Indemnitee, with the approval of the Board of
Directors, which approval shall not be unreasonably delayed, conditioned or withheld. The Company
agrees to pay the reasonable fees and disbursements of the Independent Counsel and to indemnify
fully such Independent Counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or the Independent Counsel’s
engagement pursuant hereto.
(d) If it is determined that Indemnitee is entitled to indemnification pursuant to this
Section 8, payment to Indemnitee shall be made within ten (10) days after such determination.
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 in the discretion of the Board of Directors or
Independent Counsel if retained pursuant to this Section 8. Any Expenses 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 shall indemnify and hold Indemnitee harmless therefrom.
Section 9. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making of any determination contrary to that
presumption. Neither the failure of the Company (including by its directors or independent legal
counsel) to have made a determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company (including by its
directors or independent legal counsel) that Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
(b) The termination of any Proceeding by judgment, order, settlement, conviction, a plea of
nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, does not
create a presumption that Indemnitee did not meet the requisite standard of conduct described
herein for indemnification.
(c) Unless Indemnitee has reason to believe otherwise, for purposes of any determination of
good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based
on the records or books of account of the Enterprise, including financial statements, or on
information supplied to Indemnitee by the officers of the Enterprise in the course of their duties,
or on the advice of legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Enterprise. The provisions of this Section 9(c) shall
not be deemed to be exclusive or to limit in any way the other circumstances in which the
Indemnitee may be deemed to have met the applicable standard of conduct set forth in this
Agreement.
(d) The knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Enterprise, excluding the Indemnitee, shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this Agreement.
Section 10. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 8 that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 7, (iii) no determination of entitlement to indemnification shall have been made
pursuant to Section 8(b) within thirty (30) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section 6 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, Indemnitee shall be entitled to an adjudication in an appropriate court located in
the State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the commercial Arbitration
Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within one hundred eight (180) days following the date on
which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a).
(b) In any judicial proceeding or arbitration commenced pursuant to this Section 10 the
Company shall have the burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 8(b) that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this Section 10, absent 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.
(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication
of or an award in arbitration to enforce his rights under, or to recover damages for breach of,
this Agreement, the Company shall pay on his behalf, in advance, and Indemnitee shall be entitled
to recover from the Company, and shall be indemnified by the Company for, any and all Expenses
incurred by him in such judicial adjudication or arbitration. If it shall be determined in such
judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the Expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be appropriately prorated.
Section 11. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly upon being served with or receiving any
summons, citation, subpoena, complaint, indictment, information, notice, request or other document
relating to any Proceeding which may result in the right to indemnification or the advancement of
Expenses hereunder; provided, however, that the failure to give any such notice
shall not disqualify Indemnitee from the right, or otherwise affect in any manner any right of
Indemnitee, to indemnification or the advancement of Expenses under this Agreement unless the
Company’s ability to defend in such Proceeding or to obtain proceeds under any insurance policy is
materially and adversely prejudiced thereby, and then only to the extent the Company is thereby
actually so prejudiced.
(b) Subject to the provisions of the last sentence of this Section 11(b) and of Section 11(c),
the Company shall have the right to defend Indemnitee in any Proceeding which may give rise to
indemnification hereunder; provided, however, that the Company shall notify
Indemnitee of any such decision to defend within fifteen (15) calendar days following receipt of
notice of any such Proceeding under Section 11(a). The Company shall not be liable to indemnify
Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding
effected without the Company’s written consent; provided, however, that if a Change
in Control has occurred, the Company shall be liable for indemnification of Indemnitee for amounts
paid in settlement if the Independent Counsel has approved
such settlement in writing. The Company shall not, without the prior written consent of
Indemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement or
compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an
unconditional term thereof, the full release of Indemnitee from all liability in respect of such
Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee.
Neither the Company nor Indemnitee shall unreasonably withhold their consent to any proposed
settlement. This Section 11(b) shall not apply to a Proceeding brought by Indemnitee under Section
10 or Section 17.
(c) Notwithstanding the provisions of Section 11(b), if in a Proceeding to which Indemnitee is
a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably concludes, based upon
advice of counsel to Indemnitee, that he may have separate defenses or counterclaims to assert with
respect to any issue which may not be consistent with other defendants in such Proceeding, (ii)
Indemnitee reasonably concludes, based upon advice of counsel to Indemnitee, that an actual or
apparent conflict of interest or potential conflict of interest exists between Indemnitee and the
Company, or (iii) if the Company fails to assume the defense of such Proceeding in a timely manner,
Indemnitee shall be entitled to be represented by separate legal counsel of Indemnitee’s choice, at
the expense of the Company. In addition, if the Company fails to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recover
from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have
the right to retain counsel of Indemnitee’s choice, at the expense of the Company (subject to
Section 10(d)), to represent Indemnitee in connection with any such matter.
Section 12. Non-Exclusivity; Survival of Rights; Subrogation; Insurance.
(a) The rights of indemnification and advancement of Expenses 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 or bylaws of the Company, any agreement or a resolution of the
stockholders entitled to vote generally in the election of directors or of the Board of Directors,
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
without Indemnitee’s written consent. To the extent that a change in applicable law, whether by
statute or judicial decision, permits greater indemnification or advancement of Expenses than would
be afforded currently under the Company’s charter or bylaws or this Agreement, except with respect
to suits against the Company relating to 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.
(b) 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.
(c) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable or payable or reimbursable as Expenses hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
(d) Notwithstanding any other provision of this Agreement to the contrary, the Company shall
not be liable for indemnification or advancement of Expenses in connection with any settlement or
judgment for xxxxxxx xxxxxxx or for disgorgement of profits pursuant to Section 16(b) of the
Exchange Act.
Section 13. Insurance. The Company has obtained, or will use its reasonable best
efforts to obtain, directors’ and officers’ liability insurance, on terms and conditions deemed
appropriate by the Board of Directors, with the advice of counsel, covering Indemnitee or any claim
made against Indemnitee for service as a director or officer of the Company and covering the
Company for any indemnification or advancement of Expenses made by the Company to Indemnitee for
any claims made against Indemnitee for service as a director or officer of the Company.
Section 14. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is or may be, by reason of his Corporate
Status, a witness in any Proceeding, whether instituted by the Company or any other party, and to
which Indemnitee is not a party but in which the Indemnitee receives a subpoena to testify, he
shall be advanced all Expenses and indemnified against all Expenses incurred by him or on his
behalf in connection therewith.
Section 15. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue during the period Indemnitee is an officer or director of
the Company (or is or was serving at the request of the Company as a director, trustee, officer,
employee, agent or fiduciary of another Enterprise) and shall continue thereafter so long as
Indemnitee shall be subject to any Proceeding (or any proceeding commenced under Section 10) by
reason of his Corporate Status; provided, that the rights of Indemnitee hereunder shall
continue until the final termination of any Proceeding then pending in respect of which Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 10 relating thereto.
(b) The indemnification and advancement of Expenses provided by, or granted pursuant to, this
Agreement shall be binding upon and be enforceable by the parties hereto and their respective
successors and assigns (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),
shall continue as to an Indemnitee who has ceased to be a director, trustee, officer, employee,
agent fiduciary of any Enterprise, and shall inure to the benefit of Indemnitee and his spouse,
assigns, heirs, devisees, executors and administrators and other legal representatives.
(c) 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.
Section 16. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including, without limitation,
each portion of any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.
Section 17. Exception to Right of Indemnification or Advancement of Expenses.
Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to
indemnification or advancement of Expenses under this Agreement with respect to any Proceeding
brought by Indemnitee, unless (a) the Proceeding is brought to enforce indemnification under this
Agreement, and then only to the extent in accordance with and as authorized by Sections 7 and 10 of
this Agreement, or (b) the Company’s charter, bylaws, a resolution of the stockholders entitled to
vote generally in the election of directors or of the Board of Directors or an agreement approved
by the Board of Directors to which the Company is a party expressly provides otherwise.
Section 18. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. One such counterpart signed by the party
against whom enforceability is sought shall be sufficient to evidence the existence of this
Agreement.
Section 19. 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.
Section 20. Modification and Waiver. No supplement, modification 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.
Section 21. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and
receipted for by the party to whom said notice or other communication shall have been directed, or
(b) mailed by certified or registered mail with postage prepaid, on the third business day after
the date on which it is so mailed:
If to Indemnitee, to the address set forth on the signature page hereto.
If to the Company, to:
Sirion Therapeutics, Inc.
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxx, Xxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Fax: (000) 000-0000
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Fax: (000) 000-0000
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.
Section 22. Governing Law. The parties agree that this Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of Delaware, without regard to
its conflicts of laws rules.
Section 23. Miscellaneous. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.
| Tenby Pharma Inc. |
||||
| By: | ||||
| Xxxxx Xxxxxx | ||||
| Chief Executive Officer | ||||
| [ADDRESS] |
|
