EXHIBIT "F"
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of this _____ day of
_____, 199_, by and between IgX Corp., a Delaware corporation (the "Company"),
and __________________ ("Indemnitee").
RECITALS
A. The Company and Indemnitee recognize the increasing difficulty in
obtaining liability insurance for directors, officers, employees and
agents, the significant increases in the cost of such insurance and the
general reductions in the coverage of such insurance.
B. The Company and Indemnitee further recognize the substantial increase
in corporate litigation in general, subjecting directors, officers,
employees, and agents to expensive litigation risk at the same time
that the availability and coverage of liability insurance has been
severely limited.
C. Indemnitee does not regard the current protection available as adequate
under the present circumstances, and Indemnitee and other directors,
officers, employers and agents of the Company may not be willing to
continue to serve as directors, officers, employees and agents without
additional protection.
D. The Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as directors,
officers, employees and agents of the Company and to indemnify its
directors, officers, employees and agents so as to provide them with
the maximum protection permitted by law.
AGREEMENT
The Company and Indemnitee hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve and/or continue to serve
the Company, at the Company's will (or under separate written agreement
approved by the Board of Directors of the Company, if such agreement
exists), in the capacity Indemnitee currently serves the Company, as
long as Indemnitee is duly appointed or elected and qualified in
accordance with the applicable provisions of the Bylaws of the Company
or any subsidiary of the Company or (subject to any employment
agreement between Indemnitee and the Company) until such time as
Indemnitee tenders a written resignation or is removed in accordance
with the Bylaws; provided, however, that nothing contained in this
Agreement is intended to or shall create any right (express or implied)
to continued employment by Indemnitee.
2. Indemnification.
(a) Third Party Proceedings. The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to
be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of
the Company, or any subsidiary of the Company, by reason of
any action or inaction on the part of Indemnitee while a
director, officer, employee or agent, or by reason of the fact
that Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including, without limitation,
attorneys' fees, disbursements and retainers, accounting and
witness fees, travel and deposition costs, and expenses of
investigations), judgments, fines and amounts paid in
settlement (if such settlement is approved in advance by the
Company) actually and reasonably incurred by Indemnitee in
connection with such action, suit or proceeding if Indemnitee
acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee's
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in
good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee's
conduct was unlawful.
(b) Proceedings by or in the Right of the Company. The Company
shall indemnify Indemnitee if Indemnitee was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company or
any subsidiary of the Company to procure a judgment in its
favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any
subsidiary of the Company, by reason of any action or inaction
on the part of Indemnitee while a director, officer, employee
or agent, or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses
(including, without limitation, attorneys' fees, disbursements
and retainers, accounting and witness fees, travel and
deposition costs, and expenses of investigations) and, to the
fullest extent permitted by law, amounts paid in settlement,
in each case to the extent actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of
such action or suit (i) if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company and its
stockholders, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Company in the
performance of Indemnitee's duty to the Company and its
stockholders unless and only to the extent that the court in
which such action or suit is or was pending shall determine
upon application that, in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to
indemnity for expenses and then only to the extent that the
court shall determine; (ii) if Indemnitee is a director, to
the extent that the action or contemplated action seeks
monetary damages for breach of Indemnitee's duties to the
Company and its stockholders in circumstances under which
Indemnitee's personal liability therefor has been
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eliminated as a result of the provisions of Section 102(b)(7)
of the Delaware General Corporation Law; or (iii) if
Indemnitee is an agent other than a director, to the extent
that, were Indemnitee a director, Indemnitee would have the
right to be indemnified under Section 2(b)(ii), above; and in
the case of Section 2(b)(ii) and 2(b)(iii) above,
indemnification shall include, to the extent not prohibited by
law, indemnification against all judgments, fines and amounts
paid in settlement actually and reasonably incurred by
Indemnitee in connection with such action, suit or proceeding.
(c) Mandatory Payment of Expenses. To the extent that Indemnitee
has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 2(a)
or (b) or in defense of any claim, issue or matter therein,
Indemnitee shall be indemnified against expenses (including,
without limitation, attorneys' fees, disbursements and
retainers, accounting and witness fees, travel and deposition
costs, and expenses of investigations) actually and
reasonably incurred by Indemnitee in connection therewith.
(d) Indemnification for Serving as a Witness. Notwithstanding any
other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee's status as a director,
officer, employee or agent of the Company, a witness in any
action, suit or proceeding, whether civil, criminal,
administrative or investigative, Indemnitee shall be
indemnified against expenses actually and reasonably incurred
by Indemnitee in connection therewith.
3. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all
reasonable expenses incurred by Indemnitee in connection with
the investigation, defense, settlement or appeal of any civil,
criminal, administrative or investigative action, suit or
proceeding referenced in Section 2(a) or (b) hereof (but not
amounts actually paid in settlement of any such action, suit
or proceeding). Indemnitee hereby undertakes to repay such
amounts advanced only if, and to the extent that, it shall
ultimately be determined that Indemnitee is not entitled to be
indemnified by the Company as authorized hereby.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to his right to be indemnified under this
Agreement, give the Company notice, in accordance with Section
14 hereof, 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 Chief Executive
Officer of the Company. In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
(c) Procedure. Any indemnification and advances provided for in
Section 2 and this Section 3 shall be made no later than 30
days after receipt of the written request of Indemnitee. If a
claim under this Agreement, under any statute, or under any
provision of the Company's Certificate of Incorporation or
Bylaws providing for indemnification, is not paid in full by
the Company within 30 days after a written request for payment
thereof has first been received by the Company, Indemnitee
may, but need not, at any time thereafter bring an action
against the Company
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to recover the unpaid amount of the claim and, subject to
Section 13 of this Agreement, Indemnitee shall also be
entitled to be paid for the expenses (including attorneys'
fees) of bringing such action. It shall be a defense to any
such action (other than an action brought to enforce a claim
for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that
Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Company to indemnify
Indemnitee. Indemnitee shall be entitled to receive interim
payments of expenses pursuant to Section 3(a) unless and until
such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. It is
the intention of the parties that if the Company contests
Indemnitee's right to indemnification, the question of
Indemnitee's right to indemnification shall be for the court
to decide, and neither the failure of the Company (including
its Board of Directors, any committee or subgroup of the Board
of Directors, independent legal counsel, or its stockholders)
to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup
of the Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of
conduct.
(d) Notice to Insurers. If, at the time of the receipt of a
notice of a claim pursuant to Section 3(b) hereof, the
Company has director and officer liability insurance in
effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance
with the procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be
obligated under Section 3(a) hereof to pay the expenses of any
proceedings against Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding,
with counsel approved by Indemnitee, upon the delivery to
Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company,
the Company will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same proceeding, provided that
(i) Indemnitee shall have the right to employ separate counsel
in any such proceeding at Indemnitee's expense; and (ii) if
(A) the employment of counsel by Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall
have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of
any such defense, or (C) the Company shall not, in fact, have
employed counsel to assume the defense of such pro ceeding,
then the fees and expenses of Indemnitee's counsel shall be at
the expense of the Company.
4. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this Agreement,
the Company hereby agrees to indemnify the Indemnitee to the
fullest extent permitted by law, notwithstanding
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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 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
its officers, employees or agents, 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.
(b) Nonexclusivity. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which
Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any agreement, any vote of
stockholders or disinterested Directors, the Delaware General
Corporation Law or otherwise, both as to action in
Indemnitee's official capacity and as to action in another
capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an
indemnified capacity even though he may have ceased to serve
in such capacity at the time of any action, suit or other
covered proceeding.
5. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred by him in the investigation, defense, appeal or settlement of any civil
or criminal action, suit or proceeding, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such expenses, judgments, fines or penalties to which Indemnitee is entitled.
6. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, Federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers, employees and/or agents
under this Agreement or otherwise. Indemnitee understands and acknowledges that
the Company has undertaken or may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification
to a court in certain circumstances for a determination of the Company's right
under public policy to indemnify Indemnitee.
7. Liability Insurance. If the Company does not maintain a policy or
policies of officers and directors liability insurance with a reputable
insurance company(ies), upon written request of Indemnities, the Company shall,
from time to time, make the good faith determination whether or not it is
practicable for the Company to obtain and maintain such a policy or policies of
insurance. Officers and directors liability insurance would cover, among other
things, coverage for losses from wrongful acts and/or to ensure the Company's
performance of its obligations under this Agreement. The Company shall not be
obligated to make such determination more than once in any 12-month period based
on written requests from Indemnities and any other persons with similar rights.
Among other considerations, the Company will weigh the costs of obtaining such
insurance coverage against the protection afforded by such coverage. In all such
policies of liability insurance, Indemnitee shall be named as an insured in such
a manner as to provide Indemnitee the same rights and benefits as are accorded
to the most favorably insured of the Company's directors, if Indemnitee is a
director;
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or of the Company's officers, if Indemnitee is not a director of the Company but
is an officer; or of the Company's employees, if Indemnitee is not a director or
officer but is an employee; or of the Company's agents, if Indemnitee is not a
director, officer or employee but is an agent. Notwithstanding the foregoing,
the Company shall have no obligation to obtain or maintain such insurance if the
Company determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or if Indemnitee
is covered by similar insurance maintained by a subsidiary or parent of the
Company.
8. Severability. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 8. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
9. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses
to Indemnitee with respect to proceedings or claims initiated or
brought voluntarily by Indemnitee and not by way defense, except
with respect to proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other statute
or otherwise as required under Section 145 of the Delaware General
Corporation Law, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the
Board of Directors has approved the initiation or bringing of such
suit;
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses
incurred by the Indemnitee with respect to any proceeding
instituted by Indemnitee to enforce or interpret this Agreement,
if a court of competent jurisdiction determines that each of the
material assertions made by the Indemnitee in such proceeding was
not made in good faith or was frivolous;
(c) Insured Claims. To indemnify Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement) which have been paid directly to Indemnitee by
an insurance carrier under a policy of officers' and directors'
liability insurance or other policy of insurance maintained by the
Company;
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(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;
(e) Unlawful Claims. To indemnify Indemnitee in any manner which is
contrary to public policy or which a court of competent
jurisdiction has finally determined to be unlawful;
(f) Failure to Settle Proceeding. To indemnify Indemnitee for
liabilities in excess of the total amount at which settlement
reasonably could have been made, or for any cost and/or expenses
incurred by Indemnitee following the time such settlement
reasonably could have been effected, if Indemnitee shall have
unreasonably delayed, refused or failed to enter into a settlement
of any action, suit or proceeding (or investigation or appeal
thereof) recommended in good faith, in writing, by the Company; or
(g) Breach of Employment Agreement. To indemnify Indemnitee for any
breach by Indemnitee of any employment agreement between
Indemnitee and the Company or any of its subsidiaries.
10. Construction of Certain Phrases. For purposes of this Agreement,
references to the "Company" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees and/or agents, so that if Indemnitee is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this
Agreement, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to "serving
at the request of the Company" shall include any service as a director, officer,
employee or agent of the Company or any subsidiary of the Company which imposes
duties on, or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants, or beneficiaries;
and if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in a manner "not
opposed to the best interest of the Company" as referred to in this Agreement.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
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13. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
paid all court costs and expenses, including attorneys' fees, incurred by
Indemnitee in defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
14. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee, on the date of such
receipt, or (ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked. Addresses for
notice to either party are as shown on the signature page of this Agreement, or
as subsequently modified by written notice.
[15. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of __________
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of __________,
or in Federal courts located in such State.]
16. Choice of Law. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the State of Delaware.
[17. California Law. To the extent that the Company is subject to the
provisions of Section 317 of the California General Corporation Law pursuant to
Section 2115 of the California General Corporation Law, nothing in this
Agreement shall be deemed to require the Company to take any action which would
cause it to be in violation of Section 317 of the California General Corporation
Law.]
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
IgX CORP., a Delaware corporation, as the Company
By: _____________________________________________
Name: ___________________________________________
Title: __________________________________________
Notice Address: ________________________________
________________________________
________________________________
AGREED TO AND ACCEPTED:
INDEMNITEE:
________________________________
Notice Address: ________________
________________
________________
[Signature Page to Indemnification Agreement]
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