EX-10.6
FORM OF
DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
This Director and Officer Indemnification Agreement, dated as of
October 31, 2003 (this "AGREEMENT", is made by and between Hemobiotech, Inc., a
Delaware corporation (the "COMPANY"), and ___________________ ("INDEMNITEE").
RECITALS:
A. Indemnitee is a director and officer of the Company and
his/her willingness to serve in such capacity is predicated, in substantial
part, upon the Company's willingness to indemnify him/her in accordance with the
principles reflected below, to the fullest extent permitted by the laws of the
State of Delaware, and upon the other undertakings set forth in this Agreement.
B. Therefore, in recognition of the need to provide Indemnitee
with substantial protection against personal liability, in order to procure
Indemnitee's continued service as a director and officer of the Company and to
enhance Indemnitee's ability to serve the Company in an effective manner, and in
order to provide such protection pursuant to express contract rights (intended
to be enforceable irrespective of, among other things, any amendment to the
Company's certificate of incorporation or bylaws (collectively, the "CONSTITUENT
DOCUMENTS"), any change in the composition of the Company's Board of Directors
(the "BOARD") or any change-in-control or business combination transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancement of Expenses (as defined in Section 1
(d)) to Indemnitee as set forth in this Agreement and for the continued coverage
of Indemnitee under the Company's directors' and officers' liability insurance
policies.
C. In light of the considerations referred to in the preceding
recitals, it is the Company's intention and desire that the provisions of this
Agreement be construed liberally, subject to their express terms, to maximize
the protections to be provided to Indemnitee hereunder.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere
herein, the following terms have the following meanings when used in this
Agreement with initial capital letters:
(a) "CLAIM" means (i) any threatened, asserted, pending
or completed claim, demand, action, suit or proceeding, whether civil, criminal,
administrative, arbitrative, investigative or other, and whether made pursuant
to federal, state or other law; and (ii) any inquiry or investigation, whether
made, instituted or conducted by the Company or any other party, including
without limitation any federal, state or other governmental entity, that
Indemnitee determines might lead to the institution of any such claim, demand,
action, suit or proceeding.
(b) "CONTROLLED AFFILIATE" means any corporation, limited
liability company, partnership, joint venture, trust or other entity or
enterprise, whether or not for profit, that is directly or indirectly controlled
by the Company. For purposes of this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of an entity or enterprise, whether through the ownership
of voting securities, through other voting rights, by contract or otherwise;
provided that direct or indirect beneficial ownership of capital stock or other
interests in an entity or enterprise entitling the holder to cast 20% or more of
the total number of votes generally entitled to be cast in the election of
directors (or persons performing comparable functions) of such entity or
enterprise shall be deemed to constitute control for purposes of this
definition.
(c) "DISINTERESTED DIRECTOR" means a director of the
Company who is not and was not a party to the Claim in respect of which
indemnification is sought by Indemnitee.
(d) "EXPENSES" means attorneys' and experts' fees and
expenses and all other costs and expenses paid or payable in connection with
investigating, defending, being a witness in or participating in (including on
appeal), or preparing to investigate, defend, be a witness in or participate in
(including on appeal), any Claim.
(e) "INCUMBENT DIRECTORS" means the individuals who, as
of the date hereof, are Directors of the Company and any individual becoming a
Director subsequent to the date hereof whose election, nomination for election
by the Company's stockholders, or appointment, was approved by a vote of at
least two-thirds of the then Incumbent Directors (either by a specific vote or
by approval of the proxy statement of the Company in which such person is named
as a nominee for director, without objection to such nomination); PROVIDED,
HOWEVER, that an individual shall not be an Incumbent Director if such
individual's election or appointment to the Board occurs as a result of an
actual or threatened election contest (as described in Rule 14a-12(c) of the
Exchange Act) with respect to the election or removal of Directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board.
(f) "INDEMNIFIABLE CLAIM" means any Claim based upon,
arising out of or resulting from (i) any actual, alleged or suspected act or
failure to act by Indemnitee in his or her capacity as a director, officer,
employee or agent of the Company or as a director, officer, employee, member,
manager, trustee or agent of any other corporation, limited liability company,
partnership, joint venture, trust or other entity or enterprise, whether or not
for profit, as to which Indemnitee is or was serving at the request of the
Company as a director, officer, employee, member, manager, trustee or agent,
(ii) any actual, alleged or suspected act or failure to act by Indemnitee in
respect of any business, transaction, communication, filing, disclosure or other
activity of the Company or any other entity or enterprise referred to in clause
(i) of this sentence, or (iii) Indemnitee's status as a current or former
director, officer, employee or agent of the Company or as a current or former
director, officer, employee, member, manager, trustee or agent of any other
entity or enterprise referred to in clause (i) of this sentence or any actual,
alleged or suspected act or failure to act by Indemnitee in connection with any
obligation or restriction imposed upon Indemnitee by reason of such status. In
addition to any service at the actual request of the Company, for purposes of
this Agreement, Indemnitee shall be deemed to be serving or to have served at
the request of the Company as a director, officer, employee, member, manager,
trustee or agent of another entity or enterprise if Indemnitee is or was serving
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as a director, officer, employee, member, manager, trustee or agent of such
entity or enterprise and (i) such entity or enterprise is or at the time of such
service was a Controlled Affiliate, (ii) such entity or enterprise is or at the
time of such service was an employee benefit plan (or related trust) sponsored
or maintained by the Company or a Controlled Affiliate, or (iii) the Company or
a Controlled Affiliate directly or indirectly caused Indemnitee to be nominated,
elected, appointed, designated, employed, engaged or selected to serve in such
capacity.
(g) "INDEMNIFIABLE LOSSES" means any and all Losses
relating to, arising out of or resulting from any Indemnifiable Claim.
(h) "INDEPENDENT COUNSEL" means a law firm, or a member
of a law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Company or Indemnitee in any matter material to either such party (other
than with respect to matters concerning the Indemnitee under this Agreement, or
of other indemnitees under similar indemnification agreements), or (ii) any
other party to the Indemnifiable Claim giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement.
(i) "LOSSES" means any and all Expenses, damages, losses,
liabilities, judgments, fines, penalties (whether civil, criminal or other) and
amounts paid in settlement, including without limitation all interest,
assessments and other charges paid or payable in connection with or in respect
of any of the foregoing.
2. INDEMNIFICATION OBLIGATION. Subject to Section 7, the Company
shall indemnify, defend and hold harmless Indemnitee, to the fullest extent
permitted by the laws of the State of Delaware in effect on the date hereof or
as such laws may from time to time hereafter be amended to increase the scope of
such permitted indemnification, against any and all Indemnifiable Claims and
Indemnifiable Losses; PROVIDED, HOWEVER, that, except as provided in Sections 5
and 20, Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with any Claim initiated by Indemnitee against the
Company or any director or officer of the Company unless the Company has joined
in or consented to the initiation of such Claim.
3. ADVANCEMENT OF EXPENSES. Indemnitee shall have the right to
advancement by the Company prior to the final disposition of any Indemnifiable
Claim of any and all Expenses relating to, arising out of or resulting from any
Indemnifiable Claim paid or incurred by Indemnitee or which Indemnitee
determines are reasonably likely to be paid or incurred by Indemnitee.
Indemnitee's right to such advancement is not subject to the satisfaction of any
standard of conduct. Without limiting the generality or effect of the foregoing,
within five business days after any request by Indemnitee, the Company shall, in
accordance with such request (but without duplication), (a) pay such Expenses on
behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to
pay such Expenses, or (c) reimburse Indemnitee for such Expenses; PROVIDED that
Indemnitee shall repay, without interest, any amounts actually advanced to
Indemnitee that, at the final disposition of the Indemnifiable Claim to which
the
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advance related, were in excess of amounts paid or payable by Indemnitee in
respect of Expenses relating to, arising out of or resulting from such
Indemnifiable Claim. In connection with any such payment, advancement or
reimbursement, Indemnitee shall execute and deliver to the Company an
undertaking, which need not be secured and shall be accepted without reference
to Indemnitee's ability to repay the Expenses, by or on behalf of the
Indemnitee, to repay any amounts paid, advanced or reimbursed by the Company in
respect of Expenses relating to, arising out of or resulting from any
Indemnifiable Claim in respect of which it shall have been determined, following
the final disposition of such Indemnifiable Claim and in accordance with Section
7, that Indemnitee is not entitled to indemnification hereunder.
4. INDEMNIFICATION FOR ADDITIONAL EXPENSES. Without limiting the
generality or effect of the foregoing, the Company shall indemnify and hold
harmless Indemnitee against and, if requested by Indemnitee, shall reimburse
Indemnitee for, or advance to Indemnitee, within five business days of such
request, any and all Expenses paid or incurred by Indemnitee or which Indemnitee
determines are reasonably likely to be paid or incurred by Indemnitee in
connection with any Claim made, instituted or conducted by Indemnitee for (a)
indemnification or reimbursement or advance payment of Expenses by the Company
under any provision of this Agreement, or under any other agreement or provision
of the Constituent Documents now or hereafter in effect relating to
Indemnifiable Claims, and/or (b) recovery under any directors' and officers'
liability insurance policies maintained by the Company, regardless in each case
of whether Indemnitee ultimately is determined to be entitled to such
indemnification, reimbursement, advance or insurance recovery, as the case may
be; PROVIDED, HOWEVER, that Indemnitee shall return, without interest, any such
advance of Expenses (or portion thereof) which remains unspent at the final
disposition of the Claim to which the advance related.
5. PARTIAL INDEMNITY. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Indemnifiable Loss but not for all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.
6. PROCEDURE FOR NOTIFICATION. To obtain indemnification under
this Agreement in respect of an Indemnifiable Claim or Indemnifiable Loss,
Indemnitee shall submit to the Company a written request therefor, including a
brief description (based upon information then available to Indemnitee) of such
Indemnifiable Claim or Indemnifiable Loss. If, at the time of the receipt of
such request, the Company has directors' and officers' liability insurance in
effect under which coverage for such Indemnifiable Claim or Indemnifiable Loss
is potentially available, the Company shall give prompt written notice of such
Indemnifiable Claim or Indemnifiable Loss to the applicable insurers in
accordance with the procedures set forth in the applicable policies. The Company
shall provide to Indemnitee a copy of such notice delivered to the applicable
insurers, and copies of all subsequent correspondence between the Company and
such insurers regarding the Indemnifiable Claim or Indemnifiable Loss, in each
case substantially concurrently with the delivery or receipt thereof by the
Company. The failure by Indemnitee to timely notify the Company of any
Indemnifiable Claim or Indemnifiable Loss shall not relieve the Company from any
liability hereunder unless, and only to the extent that, the Company did not
otherwise learn of such Indemnifiable Claim or Indemnifiable Loss and such
failure results in forfeiture by the Company of substantial defenses, rights or
insurance coverage.
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7. DETERMINATION OF RIGHT TO INDEMNIFICATION.
(a) To the extent that Indemnitee shall have been
successful on the merits or otherwise in defense of any Indemnifiable Claim or
any portion thereof or in defense of any issue or matter therein, including
without limitation dismissal without prejudice, Indemnitee shall be indemnified
against all Indemnifiable Losses relating to, arising out of or resulting from
such Indemnifiable Claim in accordance with Section 2 and no Standard of Conduct
Determination (as defined in Section 7(b)) shall be required.
(b) To the extent that the provisions of Section 7(a) are
inapplicable to an Indemnifiable Claim that shall have been finally disposed of,
any determination of whether Indemnitee has satisfied any applicable standard of
conduct under Delaware law that is a legally required condition precedent to
indemnification of Indemnitee hereunder against Indemnifiable Losses relating
to, arising out of or resulting from such Indemnifiable Claim (a "STANDARD OF
CONDUCT DETERMINATION") shall be made as follows: (i) by a majority vote of the
Disinterested Directors, even if less than a quorum of the Board, (ii) if such
Disinterested Directors so direct, by a majority vote of a committee of
Disinterested Directors designated by a majority vote of all Disinterested
Directors, or (iii) if there are no such Disinterested Directors or if requested
by Indemnitee, by Independent Counsel in a written opinion addressed to the
Board, a copy of which shall be delivered to Indemnitee. Indemnitee will
cooperate with the person or persons making such Standard of Conduct
Determination, including providing to such person or persons, upon reasonable
advance request, any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. The Company shall
indemnify and hold harmless Indemnitee against and, if requested by Indemnitee,
shall reimburse Indemnitee for, or advance to Indemnitee, within five business
days of such request, any and all costs and expenses (including attorneys' and
experts' fees and expenses) incurred by Indemnitee in so cooperating with the
person or persons making such Standard of Conduct Determination.
(c) The Company shall use its reasonable best efforts to
cause any Standard of Conduct Determination required under Section 7(b) to be
made as promptly as practicable. If (i) the person or persons empowered or
selected under Section 7 to make the Standard of Conduct Determination shall not
have made a determination within 30 days after the later of (A) receipt by the
Company of written notice from Indemnitee advising the Company of the final
disposition of the applicable Indemnifiable Claim (the date of such receipt
being the "NOTIFICATION DATE") and (B) the selection of an Independent Counsel,
if such determination is to be made by Independent Counsel, that is permitted
under the provisions of Section 7(e) to make such determination and (ii)
Indemnitee shall have fulfilled its obligations set forth in the second sentence
of Section 7(b), then Indemnitee shall be deemed to have satisfied the
applicable standard of conduct; PROVIDED that such 30-day period may be extended
for a reasonable time, not to exceed an additional 30 days, if the person or
persons making such determination in good faith requires such additional time
for the obtaining or evaluation of documentation and/or information relating
thereto.
(d) If (i) Indemnitee shall be entitled to
indemnification hereunder against any Indemnifiable Losses pursuant to Section
7(a), (ii) no determination of whether Indemnitee has satisfied any applicable
standard of conduct under Delaware law is a legally required condition
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precedent to indemnification of Indemnitee hereunder against any Indemnifiable
Losses, or (iii) Indemnitee has been determined or deemed pursuant to Section
7(b) or (c) to have satisfied any applicable standard of conduct under Delaware
law which is a legally required condition precedent to indemnification of
Indemnitee hereunder against any Indemnifiable Losses, then the Company shall
pay to Indemnitee, within five business days after the later of (x) the
Notification Date in respect of the Indemnifiable Claim or portion thereof to
which such Indemnifiable Losses are related, out of which such Indemnifiable
Losses arose or from which such Indemnifiable Losses resulted and (y) the
earliest date on which the applicable criterion specified in clause (i), (ii) or
(iii) above shall have been satisfied, an amount equal to the amount of such
Indemnifiable Losses.
(e) If a Standard of Conduct Determination is to be made
by Independent Counsel pursuant to Section 7(b), the Independent Counsel shall
be selected by the Board of Directors, and the Company shall give written notice
to Indemnitee advising him or her of the identity of the Independent Counsel so
selected. Indemnitee may, within five business days after receiving written
notice of selection from the Company, deliver to the Company a written objection
to such selection; PROVIDED, HOWEVER, that such objection may be asserted only
on the ground that the Independent Counsel so selected does not satisfy the
criteria set forth in the definition of "Independent Counsel" in Section 1 (h),
and the objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person or firm so selected
shall act as Independent Counsel. If such written objection is, properly and
timely made and substantiated, the Independent Counsel so selected may not serve
as Independent Counsel unless and until such objection is withdrawn or a court
has determined that such objection is without merit. If no Independent Counsel
that is permitted under the foregoing provisions of this Section 7(e) to make
the Standard of Conduct Determination shall have been selected within 30 days
after the Company gives its initial notice pursuant to the first sentence of
this Section 7(e), either the Company or Indemnitee may petition the Court of
Chancery of the State of Delaware for resolution of any objection, which shall
have been made by Indemnitee to the Company's Counsel of a person selected by
the Court or by such other person as the Court shall designate, and the person
or firm with respect to whom all objections are so resolved or the person or
firm so appointed will act as Independent Counsel. In all events, the Company
shall pay all of the reasonable fees and expenses of the Independent Counsel
incurred in connection with the Independent Counsel's determination pursuant to
Section 7(b).
8. PRESUMPTION OF ENTITLEMENT. In making any Standard of Conduct
Determination, the person or persons making such determination shall presume
that Indemnitee has satisfied the applicable standard of conduct, and the
Company may overcome such presumption only by its adducing clear and convincing
evidence to the contrary. Any Standard of Conduct Determination that is adverse
to Indemnitee may be challenged by the Indemnitee in the Court of Chancery of
the State of Delaware. No determination by the Company (including by its
directors or any Independent Counsel) that Indemnitee has not satisfied any
applicable standard of conduct shall be a defense to any Claim by Indemnitee for
indemnification or reimbursement or advance payment of Expenses by the Company
hereunder or create a presumption that Indemnitee has not met any applicable
standard of conduct.
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9. NO OTHER PRESUMPTION. For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, will not create a presumption that Indemnitee did not meet any
applicable standard of conduct or that indemnification hereunder is otherwise
not permitted.
10. NON-EXCLUSIVITY. The rights of Indemnitee hereunder will be in
addition to any other rights Indemnitee may have under the Constituent
Documents, or the substantive laws of the Company's jurisdiction of
incorporation, any other contract or otherwise (collectively, "OTHER INDEMNITY
PROVISIONS"); PROVIDED, HOWEVER, that (a) to the extent that Indemnitee
otherwise would have any greater right to indemnification under any Other
Indemnity Provision, Indemnitee will be deemed to have such greater right
hereunder and (b) to the extent that any change is made to any Other Indemnity
Provision which permits any greater right to indemnification than that provided
under this Agreement as of the date hereof, Indemnitee will be deemed to have
such greater right hereunder. The Company will not adopt any amendment to any of
the Constituent Documents the effect of which would be to deny, diminish or
encumber Indemnitee's right to indemnification under this Agreement or any Other
Indemnity Provision.
11. LIABILITY INSURANCE AND FUNDING. For the duration of
Indemnitee's service as a director and/or officer of the Company, and thereafter
for so long as Indemnitee shall be subject to any pending or possible
Indemnifiable Claim, the Company shall use commercially reasonable efforts
(taking into account the scope and amount of coverage available relative to the
cost thereof) to cause to be maintained in effect policies of directors' and
officers' liability insurance providing coverage for directors and/or officers
of the Company that is at least substantially comparable in scope and amount to
that provided by the Company's current policies of directors' and officers'
liability insurance. The Company shall provide Indemnitee with a copy of all
directors' and officers' liability insurance applications, binders, policies,
declarations, endorsements and other related materials, and shall provide
Indemnitee with a reasonable opportunity to review and comment on the same.
Without limiting the generality or effect of the two immediately preceding
sentences, the Company shall not discontinue or significantly reduce the scope
or amount of coverage from one policy period to the next (i) without the prior
approval thereof by a majority vote of the Incumbent Directors, even if less
than a quorum, or (ii) if at the time that any such discontinuation or
significant reduction in the scope or amount of coverage is proposed there are
no Incumbent Directors, without the prior written consent of Indemnitee (which
consent shall not be unreasonably withheld or delayed). In all policies of
directors' and officers' liability insurance obtained by the Company, Indemnitee
shall be named as an insured in such a manner as to provide Indemnitee the same
rights and benefits, subject to the same limitations, as are accorded to the
Company's directors and officers most favorably insured by such policy. The
Company may, but shall not be required to, create a trust fund, grant a security
interest or use other means, including without limitation a letter of credit, to
ensure the payment of such amounts as may be necessary to satisfy its
obligations to indemnify and advance expenses pursuant to this Agreement.
12. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the related
rights of recovery of Indemnitee against other persons or entities (other than
Indemnitee's successors), including any entity or enterprise referred to in
clause (i) of the definition of "Indemnifiable Claim" in Section l(f).
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Indemnitee shall execute all papers reasonably required to evidence such rights
(all of Indemnitee's reasonable Expenses, including attorneys' fees and charges,
related thereto to be reimbursed by or, at the option of Indemnitee, advanced by
the Company).
13. NO DUPLICATION OF PAYMENTS. The Company shall not be liable
under this Agreement to make any payment to Indemnitee in respect of any
Indemnifiable Losses to the extent Indemnitee has otherwise actually received
payment (net of Expenses incurred in connection therewith) under any insurance
policy, the Constituent Documents and Other to in clause (i) of the definition
of "Indemnifiable Claim" in Section 1(f)) in respect of such Indemnifiable
Losses otherwise indemnifiable hereunder.
14. DEFENSE OF CLAIMS. The Company shall be entitled to
participate in the defense of any Indemnifiable Claim or to assume the defense
thereof, with counsel reasonably satisfactory to the Indemnitee; PROVIDED that
if Indemnitee believes, after consultation with counsel selected by Indemnitee,
that (a) the use of counsel chosen by the Company to represent Indemnitee would
present such counsel with an actual or potential conflict, (b) the named parties
in any such Indemnifiable Claim (including any impleaded parties) include both
the Company and Indemnitee and Indemnitee shall conclude that there may be one
or more legal defenses available to him or her that are different from or in
addition to those available to the Company, or (c) any such representation by
such counsel would be precluded under the applicable standards of professional
conduct then prevailing, then Indemnitee shall be entitled to retain separate
counsel (but not more than one law firm plus, if applicable, local counsel in
respect of any particular Indemnifiable Claim) at the Company's expense. The
Company shall not be liable to Indemnitee under this Agreement for any amounts
paid in settlement of any threatened or pending Indemnifiable Claim effected
without the Company's prior written consent. The Company shall not, without the
prior written consent of the Indemnitee, effect any settlement of any threatened
or pending Indemnifiable Claim to which the Indemnitee is or could have been a
party unless such settlement solely involves the payment of money and includes a
complete and unconditional release of the Indemnitee from all liability on any
claims that are the subject matter of such Indemnifiable Claim. Neither the
Company nor Indemnitee shall unreasonably withhold its consent to any proposed
settlement; PROVIDED that Indemnitee may withhold consent to any settlement that
does not provide a complete and unconditional release of Indemnitee.
15. SUCCESSORS AND BINDING AGREEMENT. (a) The Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the
business or assets of the Company, by agreement in form and substance
satisfactory to Indemnitee and his or her counsel, expressly to assume and agree
to perform this Agreement in the same manner and to the same extent the Company
would be required to perform if no such succession had taken place. This
Agreement shall be binding upon and inure to the benefit of the Company and any
successor to the Company, including without limitation any person acquiring
directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor will thereafter be deemed the "COMPANY" for purposes of this
Agreement), but shall not otherwise be assignable or delegatable by the Company.
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(b) This Agreement shall inure to the benefit of and be
enforceable by the Indemnitee's personal or legal representatives, executors,
administrators, heirs, distributees, legatees and other successors.
(c) This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other, assign or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in Sections 15(a) and 15(b). Without limiting the generality or effect
of the foregoing, Indemnitee's right to receive payments shall not be
assignable, whether by pledge, creation of a security interest or otherwise,
other than by a transfer by the Indemnitee's will or by the laws of descent and
distribution, and, in the event of any attempted assignment or transfer contrary
to this Section 15(c), the Company shall have no liability to pay any amount so
attempted to be assigned or transferred.
16. NOTICES. For all purposes of this Agreement, all
communications, including without limitation notices, consents, requests or
approvals, required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally confirmed), or
five business days after having been mailed by United States registered or
certified mail, return receipt requested, postage prepaid or one business day
after having been sent for next-day delivery by a nationally recognized
overnight courier service, addressed to the Company (to the attention of the
Secretary of the Company) and to Indemnitee at the addresses shown on the
signature page hereto, or to such other address as any party may have furnished
to the other in writing and in accordance herewith, except that notices of
changes of address will be effective only upon receipt.
17. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by and construed in accordance
with the substantive laws of the State of Delaware, without giving effect to the
principles of conflict of laws of such State. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the Chancery Court of the
State of Delaware 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 Chancery Court of
the State of Delaware.
18. VALIDITY. If any provision of this Agreement or the
application of any provision hereof to any person or circumstance is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision to any other person or 7 circumstance shall
not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent, and only to the extent,
necessary to make it enforceable, valid or legal. In the event that any court or
other adjudicative body shall decline to reform any provision of this Agreement
held to be invalid, unenforceable or otherwise illegal as contemplated by the
immediately preceding sentence, the parties thereto shall take all such action
as may be necessary or appropriate to replace the provision so held to be
invalid, unenforceable or otherwise illegal with one or more alternative
provisions that effectuate the purpose and intent of the original provisions of
this Agreement as fully as possible without being invalid, unenforceable or
otherwise illegal.
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19. MISCELLANEOUS. No provision of this Agreement may be waived,
modified or discharged unless such waiver, modification or discharge is agreed
to in writing signed by Indemnitee and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, expressed or implied with respect to the subject matter
hereof have been made by either party that are not set forth expressly in this
Agreement. References to Sections are to references to Sections of this
Agreement.
20. LEGAL FEES AND EXPENSES. It is the intent of the Company that
Indemnitee not be required to incur legal fees and or other Expenses associated
with the interpretation, enforcement or defense of Indemnitee's rights under
this Agreement by litigation or otherwise because the cost and expense thereof
would substantially detract from the benefits intended to be extended to
Indemnitee hereunder. Accordingly, without limiting the generality or effect of
any other provision hereof, if it should appear to Indemnitee that the Company
has failed to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes or threatens to take any action
to declare this Agreement void or unenforceable, or institutes any litigation or
other action or proceeding designed to deny, or to recover from, Indemnitee the
benefits provided or intended to be provided to Indemnitee hereunder, the
Company irrevocably authorizes the Indemnitee from time to time to retain
counsel of Indemnitee's choice, at the expense of the Company as hereafter
provided, to advise and represent Indemnitee in connection with any such
interpretation, enforcement or defense, including without limitation the
initiation or defense of any litigation or other legal action, whether by or
against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any existing
or prior attorney-client relationship between the Company and such counsel, the
Company irrevocably consents to Indemnitee's entering into an attorney-client
relationship with such counsel, and in that connection the Company and
Indemnitee agree that a confidential relationship shall exist between Indemnitee
and such counsel. Without respect to whether Indemnitee prevails, in whole or in
part, in connection with any of the foregoing, the Company will pay and be
solely financially responsible for any and all attorneys' and related fees and
expenses incurred by Indemnitee in connection with any of the foregoing.
21. CERTAIN INTERPRETIVE MATTERS. No provision of this Agreement
shall be interpreted in favor of, or against, either of the parties hereto by
reason of the extent to which any such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof or thereof.
22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together shall constitute one and the same agreement.
[Signatures Appear On Following Page]
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IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused
its duly authorized representative to execute this Agreement as of the date
first above written.
HEMOBIOTECH, INC.
0000 Xxxxxxxx Xxx
Xxxxxx, Xxxxx 00000
By:
-------------------------
Name:
Title:
DIRECTOR:
-----------------------------
Name:
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