INDEMNITY AGREEMENT
EXHIBIT 10.26
THIS AGREEMENT made as of the • day of •, 2005.
BETWEEN:
NUCRYST Pharmaceuticals Corp., a corporation
incorporated under the laws of Alberta (the
“Corporation”);
OF THE FIRST PART
- and -
•, businessman (the “Executive”)
OF THE SECOND PART
WHEREAS:
A. The Executive is an officer and/or director of the Corporation and/or a subsidiary, or associate
or affiliate (as those terms are defined in the Business Corporations Act (Alberta)) of the
Corporation, or a body corporate of which the Corporation is or was a shareholder or creditor or
any other body corporate of which the Executive is an officer and/or director at the request of the
Corporation (collectively referred to herein as a “Subsidiary”).
B. The Corporation considers it desirable and in the best interests of the Corporation to enter
into this Agreement to set out the circumstances and manner in which the Executive may be
indemnified in respect of certain liabilities which the Executive may incur as a result of his
acting as a director and/or officer of the Corporation or any Subsidiary;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the Executive serving as a
director and/or officer of the Corporation or any Subsidiary, and the sum of ONE DOLLAR ($1.00)
paid by the Executive to the Corporation (the receipt and sufficiency of which is acknowledged by
the Corporation) and in consideration of the mutual promises and covenants herein contained, the
parties agree as follows:
1. General Indemnity
1.1 Except in respect of an action by or on behalf of the Corporation or any Subsidiary to procure
a judgement in its favour, the Corporation agrees, to the full extent allowed by law, to indemnify
and hold harmless the Executive, his heirs and legal representatives, from and against any and all
costs, charges, expenses, fees, damages, or liabilities (including legal or other professional
fees), without limitation, and whether
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incurred alone or jointly with others, which the Executive may suffer, sustain, incur or be
required to pay arising out of or incurred in respect of any action, suit, proceeding,
investigation or claim which may be brought, commenced, made, prosecuted or threatened against the
Executive or any of the other directors or officers of the Corporation or any Subsidiary or which
the Executive may be required to participate in or provide evidence in respect of (any of the same
hereinafter being referred to as a ‘Claim’) howsoever arising and whether arising in law, equity or
under statute, regulation or governmental ordinance of any jurisdiction, for or in respect of any
act, deed, matter or thing done, made, permitted or omitted by the Executive arising out of, or in
connection with or incidental to the affairs of the Corporation or any Subsidiary or the exercise
by the Executive of his powers or the performance of his duties as a director or officer of the
Corporation or of any Subsidiary (of which he was in the past, is now, or in the future may become
an officer or director) including, without limitation, any and all costs, charges, expenses, fees,
damages, or liability which the Executive may suffer, sustain or incur or be required to pay in
connection with investigating, initiating, defending, appealing, preparing for, providing evidence
in, instructing and receiving the advice of his own or other counsel, or any amount paid to settle
any claim or satisfy any judgment, fine or penalty, PROVIDED THAT the indemnity provided for herein
will not be available to the extent that it is finally determined by a court of competent
jurisdiction that in so acting:
| (a) | the Executive was not acting honestly and in good faith with a view to the best interests of the Corporation or any Subsidiary (as the case may require); and | ||
| (b) | in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Executive did not have reasonable grounds for believing that his conduct was lawful. |
1.2 With the approval of a competent court having jurisdiction, the Corporation shall indemnify the
Executive, his heirs and legal representatives, in respect of an action by or on behalf of the
Corporation or a Subsidiary to procure a judgment in its favour, to which the Executive is made a
party by reason of being or having been a director or officer of the Corporation or any Subsidiary,
from and against all losses, judgments, costs, charges and expenses, including any amount paid to
settle the action or satisfy any judgment, actually or reasonably incurred by him in connection
with or as a result of the said action provided that:
| (a) | the Executive was acting honestly and in good faith with a view to the best interests of the Corporation or any Subsidiary; and | ||
| (b) | in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Executive had reasonable grounds for believing that his conduct was lawful. |
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2. Specific Indemnity for Statutory Obligations
Without limiting the generality of the provisions of Section 1 hereof, the Corporation agrees,
to the full extent permitted by law, to indemnify and save the Executive harmless from and against
any and all costs, charges, expenses, fees, and liabilities arising by operation of statute and
incurred by or imposed upon the Executive in relation to the affairs of the Corporation or any
Subsidiary in the Executive’s capacity as director or officer thereof, including but not limited
to, all statutory obligations to creditors, employees, suppliers, contractors, subcontractors, and
any government or any agency or division of any government, whether federal, provincial, state,
regional, or municipal.
3. Taxation Indemnity
Without limiting the generality of the provisions of Section 1 hereof, the Corporation agrees
that the payment of any indemnity to or reimbursement of the Executive hereunder shall include any
amount the Executive may be required to pay on account of applicable income or goods or services
taxes arising out of the payment of such indemnity or reimbursement, provided however that any
amount required to be paid with respect to such taxes shall be payable by the Corporation only upon
such Executive remitting or being required to remit any amount payable on account of such taxes.
4. Partial Indemnification
If the Executive is determined to be entitled under any provisions of this Agreement to
indemnification by the Corporation for some or a portion of the costs, charges, expenses, fees,
damages, or liabilities incurred in respect of any Claim, but not for the total amount thereof, the
Corporation shall nevertheless indemnify the Executive for the portion hereof to which the
Executive is determined by a court of competent jurisdiction to be entitled.
5. No Presumption as to Absence of Good Faith
The determination of any Claim by judgment, order, settlement or conviction, or upon a plea of
“nolo contendere” or its equivalent, shall not, of itself, create any presumption for the purposes
of this Agreement that the Executive did not act honestly and in good faith with a view to the best
interests of the Corporation or, in the case of a criminal or administrative action or proceeding,
that he did not have reasonable grounds for believing that his conduct was lawful (unless the
judgment or order of the Court specifically finds otherwise) or that the Executive had committed
willful neglect or gross default.
6. Determination of Right to Indemnification
If the payment of an indemnity hereunder requires the approval of a court, under the
provisions of the Business Corporations Act (Alberta) or otherwise, either the Corporation
or the Executive may apply to a court of competent jurisdiction for an order approving such
indemnity by the Corporation of the Executive pursuant to this Agreement.
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7. Pre-payment of Expenses
Costs, charges, expenses, and fees incurred by the Executive in investigating, defending,
appealing, preparing for, providing evidence in, instructing and receiving the advice of his
counsel in regard to any Claim or other mater for which the Executive may be entitled to an
indemnity or reimbursement hereunder shall, at the request of the Executive, be paid or reimbursed
by the Corporation in advance or forthwith upon such amount being due and payable, it being
understood and agreed that if it is ultimately determined by a court of competent jurisdiction that
the Executive was not entitled to be so indemnified, or was not entitled to be fully so
indemnified, then the Executive shall indemnify and hold harmless the Corporation, for such amount,
or the appropriate portion thereof, so paid or reimbursed.
8. Other Rights and Remedies Unaffected
The indemnification and payment provided in this Agreement shall not derogate from or exclude
any rights to which the Executive may be entitled under any provision of the Business Corporations
Act (Alberta) or otherwise at law, the articles or by-laws of the Corporation or any Subsidiary,
this Agreement, any applicable policy of insurance, guarantee or third-party indemnity, any vote of
shareholders of the Corporation, or otherwise, both as to matters arising out of his capacity as a
director and/or officer of the Corporation or a Subsidiary, or as to matters arising out of any
other capacity in which the Executive may act for or on behalf of the Corporation or any
Subsidiary.
9. Insurance
Subject to availability at a reasonable cost to the Corporation, the Corporation shall, at its
cost, purchase and maintain standard directors’ and officers’ liability insurance for the benefit
of the Executive against any liability incurred by him,
| 9.1 | in his capacity as a director or officer of the Corporation, except where the liability relates to his failure to act honestly and in good faith with a view to the best interests of the Corporation, or | |
| 9.2 | in his capacity as a director or officer of a Subsidiary, except where the liability relates to his failure to act honestly and in good faith with a view to the best interests of that body corporate. |
10. Notices of the Proceedings
The Executive shall give reasonable notice, in writing, to the Corporation upon his being
served with any statement of claim, writ, notice of motion, indictment, subpoena, investigation
order, or other document commencing or continuing any Claim involving the Corporation or the
Executive. The Corporation agrees to notify the Executive, in writing, forthwith upon it or any of
its Subsidiaries being served with any statement of claim, writ, notice of motion, indictment,
subpoena, investigation order, or other document commencing or continuing any Claim involving the
Executive.
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11. The Corporation and Executive to Cooperate
The Corporation and the Executive shall, from time to time, provide such information and
cooperation to the other, as the other may reasonably request, in respect of all matters hereunder.
12. Effective Timing
This Agreement shall be deemed to have effect as and from the first date that the Executive
became a director and/or officer of the Corporation or of any Subsidiary.
13. Extensions, Modifications
This Agreement is absolute and unconditional and the obligations of the Corporation shall not
be affected, discharged, impaired, mitigated, or released by the extension of time, indulgence or
modification which the Executive may extend or make with any person regarding any Claim against the
Executive in connection with his duty as director or officer of the Corporation or any Subsidiary
or in respect of any liability incurred by him as a director or officer of the Corporation or any
Subsidiary.
14. Insolvency
The liability of the Corporation under this Agreement shall not be affected, discharged,
impaired, mitigated, or released by reason of the discharge or release of the Executive in any
bankruptcy, insolvency, receivership, or other similar proceeding of creditors.
15. Multiple Proceedings
No action or proceeding brought or instituted under this Agreement and no recovery pursuant
thereto shall be a bar or defense to any further action or proceeding which may be brought under
this Agreement.
16. Modification
No modification of this Agreement shall be valid unless the same is in writing and signed by
the Corporation and the Executive.
17. Termination
The obligations of the Corporation shall not terminate or be released upon the Executive
ceasing to act as a director or officer of the Corporation or any Subsidiary at any time or times.
The Corporation’s obligations may be terminated or released only by a written instrument executed
by the Executive.
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18. Notices
Any notice to be given by one party to the other shall be sufficient if delivered by hand,
deposited in any post office in Canada or the United States, registered, postage prepaid, or sent
by means of electronic transmission, addressed, as the case may be:
(a)
|
to the Corporation at its registered office, which as of the date hereof is: | |
| NUCRYST Pharmaceuticals Corp. | ||
| 00000 — 000xx Xxxxxx | ||
| Xxxx Xxxxxxxxxxxx, Xxxxxxx | ||
| Xxxxxx X0X 0X0 | ||
| Attention: President | ||
| Fax: • | ||
| with a copy to: | ||
| NUCRYST Pharmaceuticals Corp. | ||
| 00 Xxxxxxx Xxxx | ||
| Xxxxxxxxx, Xxxxxxxxxxxxx 00000 | ||
| X.X.X. | ||
| Attention: President | ||
| Fax no.: 000-000-0000 | ||
(b)
|
to the Executive at his most current address shown in the records of the Corporation, which as of the date hereof is: | |
| • | ||
| Tel: (•) • | ||
| Fax: (•) • |
or at such other address of which notice is given by the parties pursuant to the provisions of this
section. Such notice shall be deemed to have been received when delivered, if delivered, and if
mailed, on the fifth business day (exclusive of Saturdays, Sundays and statutory holidays) after
the date of mailing. Any notice sent by means of electronic transmission shall be deemed to have
been given and received on the day it is transmitted, provided that if such day is not a business
day then the notice shall be deemed to have been given and received on the next business day
following. In the case of an interruption of the postal service, all notices or other
communications shall be delivered or sent by means of electronic transmission as provided above.
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19. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Province
of Alberta and all disputes arising under this Agreement shall be referred to and the parties hereto irrevocably attorn to the jurisdiction of the courts of Alberta. Any rule of
construction to the effect that any ambiguity is to be resolved against the drafting party shall
not be applicable in the interpretation of this Agreement.
20. Further Assurances
The Corporation and the Executive agree that they shall do all such further acts, deeds or
things and execute and deliver all such further documents as may be necessary or advisable for the
purpose of assuring and conferring on the Executive the rights hereby created or intended, and of
giving effect to and carrying out the intention or facilitating the performance of the terms of
this Agreement.
21. Interpretation
Wherever the singular or masculine are used in this Agreement, the same shall be construed as
meaning the plural or the feminine or body corporate and whenever the plural is used in this
Agreement the same shall be construed as meaning the singular.
22. Invalid Terms Severable
If any term, provision, covenant or condition of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, then the offending provision(s) shall
be read down to the extent necessary to make it or them valid and enforceable or, if not capable of
being read down, shall be severed from the balance of this Agreement and the remainder of this
Agreement shall remain in full force and effect and shall in no way be affected, impaired or
invalidated by the offending provisions, provided that the Agreement remains substantially capable
of performance without adversely affecting the rights of the parties.
23. Binding Effect
All of the agreements, conditions and terms of this Agreement shall extend to and be binding
upon the Corporation and its successors and assigns, including any entity continuing as a result of
any reorganization of the Corporation (such as amalgamation, merger or arrangement) and shall enure
to the benefit of and may be enforced by the Executive and his heirs, executors, administrators,
and other legal representatives, successors and assigns.
24. Independent Legal Advice
The Executive acknowledges that he has been advised to obtain independent legal advice with
respect to entering into this Agreement, that he has obtained such independent legal advice or has
expressly waived such advice, and that he is entering into this Agreement with full knowledge of
the contents hereof, of his own free will and with full capacity and authority to do so.
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25. Power and Authority of the Corporation
The Corporation represents and warrants to the Executive that this Agreement, when executed
and delivered by the Corporation, will constitute a legal, valid and binding obligation of the
Corporation and, subject to the provisions of the Business Corporations Act (Alberta) and to any
approval of the Court required thereunder, that this Agreement and the obligations hereunder are
enforceable against the Corporation in accordance with the terms hereof and that the execution and
delivery of this Agreement and the performance thereof by the Corporation has been duly and
properly authorized by all necessary corporate action.
26. Legal Fees
Any reference in this Agreement to “fees” shall without limitation include legal fees, and
legal fees shall without limitation include all court costs and expenses and all reasonable legal
fees and disbursements on a solicitor and own client full indemnity basis. If any action is
instituted by the Executive under this Agreement to enforce or interpret any terms hereof then the
Executive shall be entitled to be paid all fees incurred by the Executive with respect to such
action, unless as part of such action, the court of competent jurisdiction determines that the
assertions made by the Executive as a basis for such action are not made in good faith or were
frivolous.
IN WITNESS WHEREOF the Corporation and the Executive have hereunto set their hands and seals
effective as of the day and year first above written.
| NUCRYST PHARMACEUTICALS CORP. | ||||||
| Per: | ||||||
Witness
|
• | |||||
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