Exhibit 10.66
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement, dated as of January 2, 2004, is made by and
between Antares Pharma, Inc., a Minnesota corporation (the "Company"), and
_______________ (the "Indemnitee"), an agent (as hereinafter defined) of the
Company.
R E C I T A L S
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A. The Company recognizes that competent and experienced persons are
sometimes reluctant to serve as directors or officers of corporations unless
they are protected by comprehensive liability insurance or indemnification, or
both, due to increased exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the compensation of such
directors and officers;
B. The statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous, or conflicting, and
therefore fail to provide such directors and officers with adequate, reliable
knowledge of legal risks to which they are exposed or information regarding the
proper course of action to take;
C. The Company and the Indemnitee recognize that because plaintiffs
often seek damages in such large amounts and the costs of litigation may be
onerous (whether or not the case is meritorious), the defense and/or settlement
of such litigation is often beyond the personal resources of directors and
officers;
D. The Company believes that it is unfair for its directors and officers
to assume the risk of personal judgments and other expenses which may occur in
cases in which the director or officer received no personal profit and in cases
where the director or officer was not culpable;
E. The Company believes that the interests of the Company and its
shareholders would best be served by a combination of the Company's liability
insurance and the indemnification by the Company of its directors and officers;
F. In accordance with the provisions of Minnesota Statutes, Section
302A.521, subd. 2, the Company is required to indemnify the Indemnitee;
G. The Company's Board of Directors has determined that contractual
indemnification as set forth herein is not only reasonable and prudent but
necessary to promote the best interests of the Company and its shareholders;
H. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company free from undue
concern for claims for damages arising out of or related to such services to the
Company; and
I. The Indemnitee is willing to serve, or to continue to serve, the
Company, only on the condition that he is furnished the indemnity provided for
herein.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions.
(a) Agent. For purposes of this Agreement, "agent" of the Company
means any person who is or was a director, officer, manager, employee or other
agent of the Company or a subsidiary of the Company; or is or was serving at the
request of the Company or a subsidiary of the Company as a director, officer,
manager, employee or agent of another foreign or domestic corporation,
partnership, limited liability company, joint venture, trust or other
enterprise; or was a director, officer, manager, employee or agent of a foreign
or domestic corporation which was a predecessor corporation of the Company or a
subsidiary of the Company; or was a director, officer, manager, employee or
agent of another foreign or domestic corporation, partnership, limited liability
company, joint venture, trust or other enterprise at the request of, for the
convenience of, or to represent the interests of such predecessor corporation.
(b) Expenses. For purposes of this Agreement, "expenses" includes
all reasonable direct and indirect costs of any type or nature whatsoever
(including, without limitation, reasonable attorneys' fees and related
disbursements, other out of pocket costs and reasonable compensation for time
spent by the Indemnitee for which he or she is not otherwise compensated by the
Company or any third party, provided that the rate of compensation and estimated
time involved is approved by the Board of Directors, which approval shall not be
unreasonably withheld), actually and reasonably incurred by the Indemnitee in
connection with either the investigation, defense or appeal of a proceeding or
establishing or enforcing a right to indemnification under this Agreement,
Minnesota law or otherwise.
(c) Proceedings. For the purpose of this Agreement, "proceeding"
shall include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of testimony in,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative.
(d) Subsidiary. For purposes of this Agreement, "subsidiary"
means any foreign or domestic corporation, partnership, limited liability
company, joint venture, trust or other enterprise of which more than 50% of the
outstanding voting securities (or comparable interests) are owned directly or
indirectly by the Company, by the Company and one or more other subsidiaries, or
by one or more other subsidiaries.
(e) Other Enterprise. For purposes of this Agreement, "other
enterprise" shall include employee benefit plans; references to "fines" shall
include any excise tax assessed with respect to any employee benefit plans;
references to "serving at the request of the Company" shall include any service
as a director, officer, manager, employee or agent of the Company which imposes
duties on, or involves services by, such director, officer, manager, employee or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; if
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the Indemnitee acts in good faith and in a manner he reasonably believes to be
in the best interest of the participants and beneficiaries of an employee
benefit plan, he shall be deemed to have acted in a manner "not opposed to the
best interests of the Company" as referred to in this Agreement.
(f) Company. "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, managers, employees or agents, so that any person who is or
was a director, officer, manager, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, manager, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
2. Agreement to Serve. The Indemnitee agrees to serve and/or
continue to serve as an agent of the Company, at its will (or under separate
agreement, if such agreement now or hereafter exists), in the capacity
Indemnitee currently serves (or in such other positions which he agrees to
assume) as an agent of the Company, so long as he is duly appointed or elected
and qualified in accordance with the applicable provisions of the Bylaws of the
Company, any subsidiary of the Company, or any applicable other foreign or
domestic corporation, partnership, limited liability company, joint venture,
trust or other enterprise, or until such time as he tenders his resignation in
writing; provided, however, that nothing contained in this Agreement is intended
to create any right to continued employment by Indemnitee in any capacity.
3. Indemnity in Third Party Proceedings. The Company shall indemnify
the Indemnitee if the Indemnitee is a party to or threatened to be made a party
to or otherwise involved in any proceeding (other than a proceeding by or in the
name of the Company to procure judgment in its favor) by reason of the fact that
the Indemnitee is or was an agent of the Company, or by reason of any act or
inaction by him in any such capacity, against any and all expenses and
liabilities of any type whatsoever (including, but not limited to, settlements,
judgments, fines and penalties), actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal of such
proceeding, but only if the Indemnitee acted in good faith and in a manner he
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 his conduct was unlawful. The termination of any
proceeding by judgment, order of court, settlement, conviction or on plea of
nolo contendere, or its equivalent, shall not, of itself, create a presumption
that Indemnitee did not act in good faith in a manner which he reasonably
believed to be in the best interests of the Company, and with respect to any
criminal proceedings, that such person had reasonable cause to believe that his
conduct was unlawful.
4. Indemnity in Derivative Action. The Company shall indemnify the
Indemnitee if the Indemnitee is a party to or threatened to be made a party to
or otherwise involved in any proceeding by or in the name of the Company to
procure a judgment in its favor by reason of the fact that the Indemnitee is or
was an agent of the Company, or by reason of any
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act or inaction by him in any such capacity, against all expenses actually and
reasonably incurred by the Indemnitee in connection with the investigation,
defense, settlement, or appeal of such proceeding, but only if the Indemnitee
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification
under this subsection shall be made in respect of any claim, issue or matter as
to which the Indemnitee shall have been finally adjudged to be liable to the
Company by a court of competent jurisdiction due to willful misconduct of a
culpable nature in the performance of his duty to the Company, unless and only
to the extent that any court in which such proceeding was brought or another
court of competent jurisdiction shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
such court shall deem proper.
5. Indemnification of Expenses of Successful Party. Notwithstanding
any other provisions of this Agreement, to the extent that the Indemnitee has
been successful on the merits or otherwise in defense of any proceeding or in
defense of any claim, issue or matter therein, including the dismissal of an
action without prejudice, the Company shall indemnify the Indemnitee against all
expenses actually and reasonably incurred in connection with the investigation,
defense or appeal of such proceeding.
6. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines or penalties), but is not entitled, however, to
indemnification for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion thereof to which the Indemnitee is
entitled, which shall be reasonably determined in good faith by the Company's
Board of Directors.
7. Advancement of Expenses. Subject to Sections 8 and 11 below, the
Company shall advance all expenses incurred by the Indemnitee in connection with
the investigation, defense, settlement or appeal of any proceeding to which the
Indemnitee is a party or is threatened to be made a party by reason of the fact
that the Indemnitee is or was an agent of the Company. Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be finally determined that the Indemnitee is not entitled to be
indemnified by the Company as authorized by this Agreement or otherwise. The
advances to be made hereunder shall be paid by the Company to or on behalf of
the Indemnitee promptly and in any event within thirty (30) days following
delivery of a written request therefore by the Indemnitee to the Company.
8. Notice and Other Indemnification Procedures. Promptly after
receipt by the Indemnitee of notice of the commencement of or the threat of
commencement of any proceeding, the Indemnitee shall, if the Indemnitee believes
that indemnification with respect thereto may be sought from the Company under
this Agreement, notify the Company of the commencement or threat of commencement
thereof, provided that the failure to provide such notification shall not
diminish Indemnitee's indemnification hereunder, except to the extent that the
Company can demonstrate that it was actually prejudiced as a result thereof. The
Company shall indemnify the Indemnitee against all expenses incurred in
connection with any hearing or proceeding under this Section 8 unless a court of
competent jurisdiction finds that each of the claims and/or defenses of the
Indemnitee in any such proceeding was frivolous or in bad faith.
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9. Assumption of Defense. In the event the Company shall be
obligated to pay the expenses of any proceeding against or involving the
Indemnitee, the Company, if appropriate, shall be entitled to assume the defense
of such proceeding, with counsel reasonably acceptable to the Indemnitee, upon
the delivery to the Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by the Indemnitee, which shall
not be unreasonably withheld, and the retention of such counsel by the Company,
the Company will not be liable to the Indemnitee under this Agreement for any
fees of counsel subsequently incurred by the Indemnitee with respect to the same
proceeding, provided that: (i) the Indemnitee shall have the right to employ his
counsel in such proceeding at the Indemnitee's expense; and (ii) if (a) the
employment of counsel by the Indemnitee has been previously authorized in
writing by the Company, (b) the Company shall have reasonably concluded that
there may be a conflict of interest between the Company and the Indemnitee in
the conduct of such defense, or (c) the Company shall not, in fact, have
employed counsel to assume the defense of such proceeding, the reasonable fees
and expenses of the Indemnitee's counsel shall be at the expense of the Company.
10. Insurance. The Company may, but is not obligated to, obtain
directors' and officers' liability insurance ("D&O Insurance") as may be or
become available in reasonable amounts from established and reputable insurers
with respect to which the Indemnitee is named as an insured. Notwithstanding any
other provision of the Agreement, the Company shall not be obligated to
indemnify the Indemnitee for expenses, judgments, fines or penalties, which have
been paid directly to or on behalf of the Indemnitee by D&O Insurance. If the
Company has D&O Insurance in effect at the time the Company receives from the
Indemnitee any notice of the commencement of a proceeding, the Company shall
give notice of the commencement of such proceeding to the insurer in accordance
with the procedures set forth in the policy. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, to or on behalf
of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policy.
11. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Certain Matters. To indemnify the Indemnitee on account of
any proceeding with respect to (i) (A)remuneration paid to Indemnitee if it is
determined by final judgment or other final adjudication that such remuneration
was in violation of law, (B) which final judgment is rendered against the
Indemnitee for an accounting of profits made by the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions
of any federal, state or local statute, (C) which it is determined by final
judgment or other final adjudication that the Indemnitee's conduct was knowingly
fraudulent or dishonest or constituted willful misconduct, or (D) which it is
determined by final judgment or other final adjudication by a court having
jurisdiction in the matter that such indemnification is not lawful; or
(b) Amounts Otherwise Covered. To indemnify the Indemnitee under
this Agreement for any amounts indemnified by the Company other than pursuant to
this Agreement and amounts paid to or for the benefit of Indemnitee by D&O
Insurance pursuant to Section 10 hereof.
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12. Nonexclusivity. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of, but shall be in addition to and shall not be deemed to diminish or
otherwise restrict, any other rights which the Indemnitee may have under any
provision of law, the Company's Articles of Incorporation or Bylaws, in any
court in which a proceeding is brought, the vote of the Company's shareholders
or disinterested directors, other agreements or otherwise, both as to action in
his official capacity and to action in another capacity while occupying his
position as an agent of the Company. To the extent applicable law or the
Company's Articles of Incorporation or Bylaws permit greater indemnification
than as provided for in this Agreement, the parties hereto agree that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such law or
provision of Articles of Incorporation or Bylaws, and this Agreement shall be
deemed amended without any further action by the Company or Indemnitee to grant
such greater benefits.
13. Settlement. The Company shall not settle any proceeding in which
Indemnitee has been named without the Indemnitee's written consent, which shall
not be unreasonably withheld.
14. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and shall
do everything that may reasonably be necessary to secure such rights, including
the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights. The Company shall pay or reimburse all
reasonable expenses incurred by Indemnitee in connection with such subrogation.
15. Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent now or hereafter
permitted by law.
16. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
(i) the validity, legality and enforceability of the remaining provisions of the
Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby,
and (iii) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, all portions of any paragraph of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable and to give effect to Sections 12 and Section 15 hereof.
17. 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 to this Agreement shall be
deemed or shall constitute a waiver of
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any other provision hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
18. Continuance of Rights; Successor and Assigns. The Indemnitee's
rights hereunder shall continue after the Indemnitee has ceased acting as an
agent of the Company. The terms of this Agreement shall bind, and shall inure to
the benefit of, the successor and assigns of the parties hereto.
19. 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, (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date, or (iii) if transmitted electronically by a means by
which receipt thereof can be demonstrated. Addresses for notice to either party
are set out on the signature page hereof and may be subsequently modified by
written notice.
20. Supersedes Prior Agreement. This Agreement supersedes any prior
indemnification agreement between Indemnitee and the Company or its
predecessors.
21. Service of Process and Venue. For purposes of any claims or
proceeding to enforce this agreement, the Company and Indemnitee consent to the
jurisdiction and venue of any federal or state court of competent jurisdiction
in the states of Arizona and Minnesota, and waive and agree not to raise any
defense that any such court is an inconvenient forum or any similar claim.
22. Governing Law. This Agreement shall be governed exclusively by and
construed according to the laws of the State of Minnesota, as applied to
contracts between Minnesota residents entered into and to be performed entirely
within Minnesota. If a court of competent jurisdiction shall make a final
determination that the provisions of the law of any state other than Minnesota
govern indemnification by the Company of its officers and directors, then the
indemnification provided under this Agreement shall in all instances be
enforceable to the fullest extent permitted under such law, notwithstanding any
provision of this Agreement to the contrary.
[Signatures follow on page 8.]
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The parties hereto have entered into this Indemnification Agreement
effective as of the date first above written.
ANTARES PHARMA, INC.
By:
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Name:
Title:
Address: 000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, XX 00000
Indemnitee:
By:
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Name:
Address:
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