Exhibit 10.1
INDEMNIFICATION AGREEMENT
-------------------------
This Indemnification Agreement is made as of this ___ day of
__________, ____, by and between Aderis Pharmaceuticals, Inc., a Delaware
corporation (the "Company") and _______________ ("Indemnitee").
W I T N E S S E T H:
-------------------
WHEREAS, the Company, in order to induce Indemnitee to serve
the Company as a _________, has agreed to provide Indemnitee with the benefits
contemplated by this Agreement;
WHEREAS, as a result of the provision of such benefits
Indemnitee has agreed to serve as a director of the Company;
WHEREAS, the By-laws of the Company and the Certificate of
Incorporation of the Company require the Company to indemnify its directors and
officers and others to the full extent permitted by law, and the Indemnitee has
agreed to serve as a director of the Company in part in reliance on such By-laws
and Certificate of Incorporation; and
WHEREAS, (x) in recognition of (A) Indemnitee's need for
protection against personal liability, in order to enhance Indemnitee's service
to the Company in an effective manner, and (B) Indemnitee's reliance on the
Company's By-laws and Certificate of Incorporation, and (y) in part to provide
Indemnitee with specific contractual assurance that the protection promised by
such By-laws and Certificate of Incorporation will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of such
By-laws or Certificate of Incorporation or any change in the composition of the
Board of Directors of the Company (the "Board") or Change of Control (as defined
in Section 1) of the Company), the Company wishes to provide in this Agreement
for the indemnification of and the advancing of expenses to Indemnitee to the
fullest extent (whether partial or complete) permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and officers' liability
insurance policies;
NOW, THEREFORE, in consideration of these premises and of
Indemnitee's intention to serve the Company directly or, at the Company's
request (and with the Indemnitee's agreement), another enterprise, and,
intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. The following terms shall have the
-------------------
meanings set forth below when such terms are used in this Agreement.
(a) "Beneficial Owner" shall have the meaning given to
such term in Rule 13d-3 under the Exchange Act (as hereinafter defined);
provided, however, that Beneficial Owner shall exclude any Person (as
hereinafter defined) otherwise becoming a Beneficial Owner by reason of the
shareholders of the Company approving a merger of the Company with another
entity.
1
(b) "Change of Control" means a change in control of the
Company of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act,
whether or not the Company is in fact required to comply therewith; provided,
that, without limitation, a change in control shall be deemed to have occurred
if:
(i) any Person or group of Persons, other than (A)
a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or (B) a corporation owned directly or
indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company is or
becomes the Beneficial Owner, directly or indirectly, of securities of
the Company representing 15% or more of the combined voting power,
(ii) during any period of two consecutive years
(not including any period prior to the execution of this Agreement),
individuals who at the beginning of such period constitute the Board
and any new director whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at
least 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,
(iii) the effective date of a merger or
consolidation of the Company with any other entity, other than a
merger or consolidation which would result in the Voting Securities
(as hereinafter defined) of the Company outstanding immediately prior
to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of
the surviving entity) more than fifty-one percent (51%) of the
combined voting power of the Voting Securities of the surviving entity
outstanding immediately after such merger or consolidation and with
the power to elect at least a majority of the board of directors or
other governing body of such surviving entity,
(iv) the stockholders of the Company approve or
authorize a plan of complete liquidation of the Company or an
agreement for the sale, lease, exchange, transfer or other disposition
by the Company of (in one transaction or a series of transactions) all
or substantially all of the Company's assets.
(c) "Exchange Act" shall mean the Securities Act of
1934, as amended.
(d) "Expenses" means all expenses, liabilities and
losses (including, without limitation, attorneys' and experts' fees and
expenses, costs, obligations, judgments, fines, interest, ERISA excise taxes,
penalties or assessments and amounts paid in settlement) incurred or suffered by
Indemnitee in connection with any Indemnifiable Event (as hereinafter defined)
(including, without limitation, in connection with, investigating, defending,
being a witness in or participating in (including on appeal), or preparing to
defend, be a witness in or participate in, any Proceeding (as hereinafter
defined) relating to any Indemnifiable Event.
2
(e) "Independent Legal Counsel" means any
attorney or firm of attorneys, selected in accordance with the provisions of
Section 10, who shall not have otherwise performed services for the Company or
Indemnitee within the last five years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
Indemnitees under similar indemnity agreements).
(f) "Person" shall have the meaning set forth in
Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person
shall exclude (i) the Company, (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, and (iii) any
corporation owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
(g) "Potential Change of Control" shall be
deemed to have occurred if:
(i) the Company enters into an
agreement, the consummation of which would result in the occurrence of
a Change of Control;
(ii) any Person, including the Company,
publicly announces an intention to take or consider taking actions
which if consummated would constitute a Change of Control;
(iii) any Person, other than the Company,
any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or an corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company (A) is or
becomes the Beneficial Owner, (B) discloses directly or indirectly to
the Company or publicly a plan or intention to become the Beneficial
Owner, or (C) makes a filing under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, with respect to securities to
become the Beneficial Owner, directly or indirectly, of securities
representing 9.9% or more of the combined voting power of the
outstanding Voting Securities of the Company; or
(iv) the Board adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change of
Control of the Company has occurred.
(h) "Proceeding" means any threatened, pending
or completed (x) action, suit or proceeding, or (y) inquiry or investigation
that Indemnitee in good faith believes might lead to the institution of an
action, suit or proceeding, in each case, whether instituted by the Company or
any other party and whether civil, criminal, administrative, investigative or
other.
(i) "Voting Securities" means any securities of
the Company which vote generally in the election of directors.
2. Right to Indemnification. The Company shall indemnify
------------------------
and hold harmless Indemnitee, as soon as practicable but in any event no later
than thirty days after written demand, in connection with any Proceeding to
which Indemnitee is a party or witness or
3
in which Indemnitee is otherwise involved, by reason of the fact that Indemnitee
is to become, is or was a director, officer, employee, consultant, agent or
fiduciary of the Company, or is to serve or is or was serving at the request of
the Company as a director, officer, employee, consultant, agent or fiduciary of
another corporation or of a partnership, joint venture, trust or other
enterprise, including, without limitation, service with respect to an employee
benefit plan, or by reason of anything done or not done by Indemnitee in any
such capacity (each such event, occurrence or circumstance in which Indemnitee
is entitled to indemnification pursuant to this Agreement, an "Indemnifiable
Event"), in each case to the fullest extent permitted by applicable law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Company to provide broader
indemnification rights than permitted prior thereto), against all Expenses,
incurred, suffered or paid by Indemnitee in connection therewith, and such
indemnification shall continue after Indemnitee has ceased to be a director,
officer, employee, consultant, agent or fiduciary of the Company and shall inure
to the benefit of Indemnitee's heirs, executors and administrators; provided,
--------
however, that, except as provided in Section 5 hereof with respect to
-------
Proceedings to enforce rights to indemnification, the Company shall indemnify
Indemnitee in connection with a Proceeding (or part thereof) initiated by
Indemnitee only if such Proceeding (or part thereof) was authorized by the
Board.
3. Right to Advancement of Expenses. The right to
--------------------------------
indemnification conferred in Section 2 hereof shall include the right to be paid
by the Company (within 2 business days of a request by Indemnitee) the Expenses
incurred or suffered by Indemnitee in connection with defending any Proceeding
for which such right to indemnification is applicable in advance of its final
disposition (an "Advancement of Expenses"); provided, however, that, if, but
-------- -------
only if, the Delaware General Corporation Law ("DGCL") so requires, an
Advancement of Expenses for Indemnitee in his capacity as a director or officer
(and not in any other capacity in which service was or is rendered by
Indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Company of an undertaking (an
"Undertaking"), by or on behalf of Indemnitee, to repay all amounts so advanced
if it shall ultimately be determined by final judicial decision from which there
is no further right to appeal (a "Final Adjudication") that Indemnitee is not
entitled to be indemnified for such Expenses under this Agreement or otherwise.
4. Partial Indemnity, Etc. If Indemnitee is entitled under any
----------------------
provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses incurred or suffered by Indemnitee in connection with
any Proceeding but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Proceedings relating in whole or in part to
an Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
5. Right of Indemnitee to Bring Suit.
---------------------------------
(a) If a claim under Section 2, 3 or 4 of this Agreement
is not paid in full by the Company within thirty days after a written claim has
been received by the Company,
4
except in the case of a claim for an Advancement of Expenses, in which case the
applicable period shall be two days after a written request has been received by
the Company, Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of such claim.
(b) The Company shall indemnify and hold harmless
Indemnitee from and against any and all Expenses and, if requested by
Indemnitee, shall (within two business days of any such request) advance funds
to Indemnitee to cover such Expenses, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any other
agreement or Company By-law now or hereafter in effect relating to Indemnifiable
Events and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance expense
payment or insurance recovery, as the case may be.
(c) In any suit brought by Indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by Indemnitee to
enforce a right to an Advancement of Expenses) it shall be a defense that, and
(ii) in any suit brought by the Company to recover an Advancement of Expenses
pursuant to the terms of an Undertaking the Company shall be entitled to recover
such Expenses upon a Final Adjudication that, Indemnitee has not met any
applicable standard for indemnification required to be met pursuant to the DGCL.
Neither the failure of the Company (including its directors, Independent Legal
Counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct set
forth in the DGCL, nor an actual determination by the Company (including its
directors, Independent Legal Counsel, or its stockholders) that Indemnitee has
not met such applicable standard of conduct, shall create a presumption that
Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by Indemnitee, be a defense to such suit.
(d) In any suit brought by Indemnitee to enforce a
right to indemnification or to an Advancement of Expenses hereunder, or by the
Company to recover an Advancement of Expenses pursuant to the terms of an
Undertaking, the burden of proving that Indemnitee is not entitled to be
indemnified, or to such Advancement of Expenses, under this Agreement or
otherwise, shall be on the Company.
6. Settlement. The Company shall have no obligation to
----------
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any Proceeding effected without the Company's prior written consent. The Company
shall not settle any Proceeding in any manner that would impose any fine or any
obligation on Indemnitee without Indemnitee's prior written consent and no
settlement of any Proceeding shall be entered into unless, if applicable, in
Indemnitee's discretion, such settlement includes, as an unconditional term
thereof, the delivery by the claimant or plaintiff in such Proceeding to
Indemnitee of a duly executed written release of Indemnitee from all liability
or obligation in respect of such Proceeding, which release shall be reasonably
satisfactory in form and substance to Indemnitee and Indemnitee's counsel. The
Company shall not unreasonably withhold its consent to any proposed settlement.
5
7. Rights Not Exclusive. The rights provided under this
--------------------
Agreement shall not be deemed exclusive of any other rights which Indemnitee may
be entitled under the Company's By-laws, the Company's Certificate of
Incorporation, the DGCL, any Agreement, any vote of stockholders or of
disinterested directors or otherwise, both as to action in his official capacity
and as to action in any other capacity, and shall continue after Indemnitee
ceases to serve the Company as a director, officer, employee, consultant, agent
or fiduciary (or person named as a prospective director) of the Company. To the
extent that a change in the DGCL (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded currently
under the Company's By-laws, the Company's Certificate of Incorporation and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change. Unless otherwise
required by law, the Company shall not adopt any amendment to its By-laws or
Certificate of Incorporation the effect of which would be to deny, diminish or
encumber the Indemnitee's rights to indemnification pursuant to this Agreement,
the Company's Certificate of Incorporation, the Company's By-laws, the DGCL or
any other applicable law as applied to any act or failure to act occurring in
whole or in part.
8. 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 in any
respect, and the validity and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired and shall remain enforceable to the fullest extent permitted by law.
9. Choice of Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to any conflict of laws, provisions or principles.
10. Change of Control. The Company agrees that if there is a
-----------------
Change of Control of the Company, then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments and
Advancement of Expenses under this Agreement or any other agreement or Company
By-law now or hereafter in effect relating to Indemnifiable Events, the Company
shall seek legal advice only from Independent Legal Counsel selected by
Indemnitee and approved by the 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 the Indemnitee would
be permitted to be indemnified under applicable law. 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 thereto.
11. Establishment of Trust. In the event of a Potential
----------------------
Change in Control, the Company may create a trust for the benefit of the
Indemnitee (either alone or together with one or more other indemnitees) and
from time to time fund such trust in such amounts as the Board may determine to
satisfy Expenses reasonably anticipated to be incurred in connection with
investigating, preparing for and defending any claim relating to an
Indemnifiable Event, and all judgments, fees, fines, penalties and settlement
amounts of all claims relating to an Indemnifiable Event from time to time paid
or claimed, reasonably anticipated or proposed to be
6
paid. The terms of any trust established pursuant hereto shall provide that upon
a Change in Control (i) the trust shall not be revoked or the principal thereof
invaded, without the written consent of the Indemnitee, (ii) the trustee shall
advance, within ten business days of a request by the Indemnitee, all Expenses
to the Indemnitee, (iii) the trustee shall promptly pay to the Indemnitee all
amounts for which the Indemnitee shall be entitled to indemnification pursuant
to this Agreement or otherwise, and (iv) all unexpended funds in such trust
shall revert to the Company upon a final determination by a court of competent
jurisdiction, as the case may be, that the Indemnitee has been fully indemnified
under the terms of this Agreement. The trustee shall be a person or entity
satisfactory to the Indemnitee. Nothing in this Section 11 shall relieve the
Company of any of its obligations under this Agreement.
12. Burden of Proof. In connection with any determination as
---------------
to whether Indemnitee is entitled to be indemnified hereunder the burden of
proof shall be on the Company to establish that Indemnitee is not so entitled.
13. No Presumptions. For purposes of this Agreement, the
---------------
termination of any Proceeding, 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 applicable law.
14. Liability Insurance. The Company is maintaining (pursuant
-------------------
to a policy or policies, true and complete copies of which have been made
available to Indemnitee), and shall maintain, an insurance policy or policies
providing directors' and officers' liability insurance. Indemnitee shall be
covered by such policy or policies, for proposing to become, serving as or
having served as a director, officer, employee, consultant, agent or fiduciary
(or person named as a prospective director) of the Company, or, at the request
of the Company, of another corporation or of a partnership, joint venture, trust
or other enterprise, to the maximum extent of the coverage available for any
person in such capacity. The Company shall maintain the Company's insurance
policy providing directors' and officers' liability insurance that is in place
as of the date hereof for a period from the date hereof until six years after
the last date on which Indemnitee ceases to be a director, officer, employee,
consultant, agent or fiduciary of the Company (or person named as a prospective
director) or, at the request of the Company, of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise;
provided, however, that the Company may substitute therefor policies of
-------- -------
substantially similar coverage and amounts containing material terms no less
advantageous to the Indemnitee.
15. Subrogation. 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.
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 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
7
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. Successor and Assignments; Effectiveness of Agreement.
-----------------------------------------------------
This Agreement shall be (i) binding upon all successors and assigns of the
Company (including any transferee of all or substantially all of its assets and
any successor by merger or otherwise by operation of law) and (ii) shall be
binding on and inure to the benefit of the heirs, personal representatives and
estate of Indemnitee. This Agreement shall continue in effect regardless of
whether Indemnitee becomes a director, officer, employee, consultant, agent or
fiduciary (or person named as a prospective director) of the Company, or
continues to serve as a director, officer, employee, consultant, agent or
fiduciary (or person named as a prospective director) of the Company or of any
other corporation, partnership, joint venture or other enterprise at the request
of the Company.
18. Amendment. No amendment, modification, termination or
---------
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto.
19. Notices. All notices, requests, demands and other
-------
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) if 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:
(a) If to Indemnitee:
--------------------
--------------------
--------------------
or such other address as Indemnitee shall provide to the Company.
(b) If to the Company to:
Aderis Pharmaceuticals, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
or such other address as may have been furnished to Indemnitee by the Company.
[Remainder of this page intentionally left blank.]
8
IN WITNESS WHEREOF, the Company and Indemnitee have executed
this Agreement as of the day and year first above written.
ADERIS PHARMACEUTICALS, INC.,
a Delaware corporation
By:____________________________
Name:__________________________
Title:_________________________
-------------------------------
9
