Exhibit 10.5
FORM OF INDEMNIFICATION AGREEMENT
This Agreement is entered into this 17th day of May, 2000, by and
between Photogen Technologies, Inc. a Nevada corporation (the "Company"), and
______________________ ("Indemnitee").
WHEREAS, highly competent persons are becoming more reluctant to serve
corporations as directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the corporation; and
WHEREAS, the Board of Directors believes the Company should act to
assure such persons that there will be increased certainty of such protection in
the future; and believes that such protection is consistent with Article VI of
the Bylaws and, in particular, Section 6 thereof, and Section 78.752 of the
Nevada General Corporation Law; and
WHEREAS, it is reasonable, prudent and necessary for the Company to
obligate itself by contract to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern for litigation claims for damages arising out of
or related to the performance of such service; and
WHEREAS, Indemnitee is willing to serve or continue to serve as a
director of the Company and its subsidiaries with the understanding that the
Indemnitee shall be indemnified to the fullest extent permitted by applicable
law.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meaning given here:
Section 1.1 "Board" means the Board of Directors of the Company.
Section 1.2 "Corporate Status" describes the status of a person who is
or was a director, officer, employee, agent or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person is or was serving at the express written
request of the Company.
Section 1.3 "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
Section 1.4 "Enterprise" means the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the express written request of the Company
as a director, officer, employee, agent or fiduciary.
Section 1.5 "Expenses" includes all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting or defending (or
preparing to prosecute or defend) a Proceeding, investigating the matters at
issue in a Proceeding, or being or preparing to be a witness in a Proceeding.
Section 1.6 "Good Faith" means Indemnitee having acted in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Enterprise, and, with respect to any criminal Proceeding,
having had no reasonable cause to believe Indemnitee's conduct was unlawful.
Section 1.7 "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or
any other actual, threatened or completed proceeding whether civil, criminal,
administrative or investigative, other than one initiated by Indemnitee. For
purposes of the foregoing sentence, a "Proceeding" shall not be deemed to have
been initiated by Indemnitee where Indemnitee seeks pursuant to Article VIII of
this Agreement to enforce Indemnitee's rights under this Agreement.
ARTICLE II
TERM OF AGREEMENT
This Agreement shall continue until and terminate upon the later of:
(i) six (6) years after the date that Indemnitee's Corporate Status shall have
ceased; or (ii) the final termination of all pending Proceedings in respect of
which Indemnitee is granted rights of indemnification or advancement of expenses
hereunder and of any proceeding commenced by Indemnitee regarding the
interpretation or enforcement of this Agreement.
ARTICLE III
SERVICES BY INDEMNITEE, NOTICE OF PROCEEDINGS
Section 3.1 SERVICES. Indemnitee agrees to serve as a Director of the
Company, and from time to time, in such capacity as a Director and/or Officer of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise as directed by the
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Board of Directors and agreed to by Indemnitee. Such service is subject to the
Bylaws and any written agreement between the Indemnitee and the Company or such
other entity.
Section 3.2 NOTICE OF PROCEEDING. Indemnitee agrees promptly to notify
the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder.
Section 3.3 COOPERATION. Indemnitee agrees to cooperate (and to cause
his representatives to cooperate) with the Company and its counsel in connection
with any Proceeding or other matter which may be subject to indemnification or
advancement of Expenses covered hereunder.
ARTICLE IV
INDEMNIFICATION
Section 4.1 IN GENERAL. The Company shall indemnify and advance
Expenses to Indemnitee in connection with any Proceeding as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may thereafter from
time to time permit.
Section 4.2 THIRD PARTY ACTIONS. If Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in
the right of the Company) by reason of his Corporate Status, or by reason of any
act or omission in any such capacity, the Company shall indemnify him against
any and all Expenses and liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) actually and reasonably incurred by or for him in connection with
the investigation, defense, settlement or appeal of such Proceeding or any
claim, issue or matter therein if he acted in Good Faith.
Section 4.3 DERIVATIVE ACTIONS. If Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the
Company to procure a judgment in its favor by reason of his Corporate Status, or
by reason of any act or omission in any such capacity, the Company shall
indemnify him against any and all Expenses actually and reasonably incurred by
or for him in connection with the investigation, defense, settlement, or appeal
of such Proceeding if he acted in Good Faith; except that no indemnification
under this Section 4.3 shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
Enterprise or for amounts paid in settlement to the Enterprise, unless and only
to the extent that the court in which the Proceeding was brought or other court
of competent jurisdiction determines upon application that in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
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Section 4.4 INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL. Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of Indemnitee's Corporate Status, a party to and
is successful, on the merits or otherwise, in any Proceeding, Indemnitee shall
be indemnified to the maximum extent permitted by law, against any and all
Expenses and liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) actually and reasonably incurred by or for him in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee to the maximum extent permitted by law, against all Expenses and
liabilities of any type whatsoever (including, but not limited to, judgments,
penalties, and amounts paid in settlement) actually and reasonably incurred by
or for him in connection with each successfully resolved claim, issue or matter.
For purposes of this Section 4.4 and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter, so long as there has been no finding (either adjudicated or pursuant to
Article VI) that Indemnitee did not act in Good Faith.
Section 4.5 INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of Indemnitee's Corporate Status, a witness in any Proceeding, Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by or
for him in connection therewith.
ARTICLE V
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI, the
Company shall advance all reasonable Expenses which, by reason of Indemnitee's
Corporate Status, were incurred by or for him in connection with any proceeding
in advance of the final disposition thereof, within ten (10) business days after
the receipt by the Company of a statement or statements from Indemnitee
requesting such advance or advances. Such statement or statements shall
reasonably evidence the Expenses incurred by or for Indemnitee. Indemnitee
hereby agrees to repay any Expenses advanced hereunder if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified against such
Expenses. Any advances and the undertaking to repay pursuant to this Article V
shall be unsecured and interest free.
ARTICLE VI
DETERMINATION OF RIGHT TO INDEMNIFICATION
Section 6.1 NO DETERMINATION NECESSARY WHEN INDEMNITEE WAS SUCCESSFUL.
To the extent Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding referred to in Sections 4.2 or 4.3 of this Agreement
or in the defense of any claim, issue or matter
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described therein, the Company shall indemnify Indemnitee against Expenses
actually and reasonably incurred by or for him in connection with the
investigation, defense, or appeal of such Proceeding.
Section 6.2 FORUM FOR DETERMINATION. Indemnitee shall be entitled to
select the forum in which the validity of the Company's claim under Section 6.2
hereof that Indemnitee is not entitled to indemnification will be heard from
among the following:
(a) A quorum of the Board consisting of Disinterested
Directors;
(b) The shareholders of the Company;
(c) Legal counsel selected by Indemnitee, and reasonably
approved by the Board, which counsel shall make such
determination in a written opinion; or
(d) A panel of three arbitrators, one of whom is selected
by the Company, another of whom is selected by
Indemnitee and the last of whom is selected by the
first two arbitrators so selected.
As soon as practicable, and in no event later than thirty (30) days after
written notice of Indemnitee's choice of forum pursuant to this Section 6.2, the
Company shall, at its own expense, submit to the selected forum in such manner
as Indemnitee or Indemnitee's counsel may reasonably request, its claim that
Indemnitee is not entitled to indemnification, and the Company shall act in the
utmost good faith to assure Indemnitee a complete opportunity to defend against
such claim.
Section 6.3 RIGHT TO APPEAL. Notwithstanding a determination by any
forum listed in Section 6.2 hereof that Indemnitee is not entitled to
indemnification with respect to a specific Proceeding, Indemnitee shall have the
right to apply to the court in which that Proceeding is or was pending, or any
other court of competent jurisdictions, for the purpose of enforcing
Indemnitee's right to indemnification pursuant to this Agreement.
Section 6.4 EXPENSES UNDER THIS AGREEMENT. Notwithstanding any other
provision in this Agreement to the contrary, the Company shall indemnify
Indemnitee against all expenses incurred by Indemnitee in connection with any
hearing or proceeding under this Article VI involving Indemnitee and against all
Expenses incurred by Indemnitee in connection with any other action between the
Company and Indemnitee involving the interpretation or enforcement of the rights
of Indemnitee under this Agreement, but only to the extent Indemnitee prevails
in any such action.
Section 6.5 THIRD PARTY DEFENDANT. Company hereby agrees that in the
event a claim is brought against Indemnitee in any Proceeding to which
Indemnitee would be entitled to
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Indemnification under Articles IV and VI hereunder, and Indemnitee desires to
name Company as a third party defendant in any such Proceeding, Company will not
contest service of process or personal jurisdiction.
ARTICLE VII
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
Section 7.1 BURDEN OF PROOF. In making a determination with respect to
entitlement to indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement. The Company shall have the burden of proof to overcome
that presumption by a preponderance of the evidence.
Section 7.2 EFFECT OF OTHER PROCEEDINGS. The termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in Good Faith.
Section 7.3 RELIANCE AS SAFE HARBOR. For purposes of any determination
of Good Faith, Indemnitee shall be deemed to have acted in Good Faith if
Indemnitee's action is based on the records or books of account of the Company,
including financial statements, or on information supplied to Indemnitee by the
officers of the Company in the course of their duties, or on the advice of legal
counsel for the Company or on information or records given or reports made to
the Company by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Company. The provisions of
this Section 7.3 shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
ARTICLE VIII
NON-EXCLUSIVITY, INSURANCE, SUBROGATION
Section 8.1 NON-EXCLUSIVITY. The rights of indemnification and to
receive advancement of Expenses as provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Articles of Incorporation, the By-Laws, any
agreement, a vote of shareholders or a resolution of directors, directors and
officers insurance, or otherwise. No amendment, alteration, rescission or
replacement of this Agreement or any provision hereof shall be effective as to
Indemnitee with respect to any action taken or omitted by such Indemnitee in
Indemnitee's Corporate Status prior to such amendment, alteration, rescission or
replacement.
Section 8.2 INSURANCE. The Company may maintain an insurance policy or
policies against liability arising out of this Agreement or otherwise.
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Section 8.3 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.
Section 8.4 NO DUPLICATIVE PAYMENT. Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 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 heirs, executors and administrators.
Section 9.2 SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect as much as possible to
the intent manifested by the provision held invalid, illegal or unenforceable.
Section 9.3 COUNTERPARTS; HEADINGS. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction thereof.
Section 9.4 MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
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Section 9.5 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, (ii) mailed by certified
or registered mail with postage prepaid, on the third business day after the
date of which it is so mailed, or (iii) mailed by overnight courier with postage
prepaid, on the first day after the date of which it is so mailed:
If to Indemnitee: as shown with Indemnitee's signature below
If to Company: Photogen Technologies, Inc.
0000 Xxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: President
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 9.6 GOVERNING LAW. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Nevada without application of the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
COMPANY:
PHOTOGEN TECHNOLOGIES, INC.
By:
--------------------------
-------------------, President
INDEMNITEE:
---------------------------
--------------------[name]
Notice Address:
------------------------
------------------------
------------------------
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