INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("Agreement") is entered into
as of the ___ day of ______________, 200__ by and between GenSpera, Inc., a
Delaware corporation (the
“Company”), and _______________ ( "Indemnitee" ).
RECITALS
A. The
Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the Company's directors and officers, the significant increases in
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 and officers to expensive litigation
risks at the same time as the availability and coverage of liability insurance
has been severely limited.
C. The
Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and, in part, in order to
induce Indemnitee to continue to provide services to the Company, wishes to
provide for the indemnification and advancing of expenses to Indemnitee to the
maximum extent permitted by law.
D. In
view of the considerations set forth above, the Company desires that Indemnitee
be indemnified by the Company as set forth herein.
NOW,
THEREFORE, the Company and Indemnitee hereby agree as follows:
AGREEMENT
1. Indemnification.
(a) Indemnification of
Expenses. The Company shall indemnify Indemnitee to the fullest extent
permitted by law if Indemnitee was or is or becomes a party to or witness or
other participant in, or is threatened to be made a party to or witness or other
participant in, any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the
institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether civil, criminal, administrative, investigative or
other (hereinafter a
"Claim") by reason of (or arising in part out of) any event or occurrence
related to the fact that Indemnitee is or was a director or officer of the
Company, or any subsidiary of the Company, or is or was serving at the request
of the Company as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of Indemnitee while serving in such
capacity (hereinafter an "Indemnifiable
Event" ) against any and all expenses (including attorneys' fees and all
other costs, expenses and obligations incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in, any such action, suit,
proceeding, alternative dispute resolution mechanism, hearing, inquiry or
investigation), losses, claims, damages, liabilities, judgments, fines,
penalties and amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably withheld) of
such Claim and any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments under this
Agreement, including all interest, assessments and other charges paid or payable
in connection with or in respect of such Expenses (collectively,
hereinafter "Expenses")
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, suit or proceeding, Indemnitee had no reasonable cause
to believe Indemnitee's conduct was unlawful.
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(b) Mandatory Payment of
Expenses. Notwithstanding any other provision of this Agreement other
than Section 7 hereof, to the extent that Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal of a
Claim without prejudice, in defense of any Claim referred to in Section (1)(a)
hereof or in the defense of any Claim, issue or matter therein, Indemnitee shall
be indemnified against all Expenses incurred by Indemnitee in connection
therewith.
2. Expenses; Indemnification
Procedure.
(a) Advancement of
Expenses. The Company shall pay all Expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of any civil or
criminal Claim referenced in Section 1(a) hereof in advance of the final
disposition of such Claim. 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. The advances to be made hereunder shall be paid by the Company to
Indemnitee following a request therefor, but in any event no later than sixty
days after receipt by the Company of written demand from Indemnitee for such
advances.
(b) Notice/Cooperation by
Indemnitee. Indemnitee shall, as a condition precedent to Indemnitee's
right to be indemnified under this Agreement, give the Company notice in writing
as soon as practicable of any Claim made against Indemnitee for which
indemnification or advancement will or could be sought under this Agreement.
Notice to the Company shall be directed to the General Counsel of the Company at
the address shown on the signature page of this Agreement (or such other address
as the Company shall designate in writing to Indemnitee). 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 of Expenses provided for in Section 1 and Section 2
of this Agreement shall be paid by the Company to Indemnitee as soon as
practicable after receipt of written request from Indemnitee for such
indemnification or advances along with appropriate written documentation
verifying such Expenses, but in any event no later than sixty days after receipt
of such request. If the Company believes that Indemnitee has not met the
standards of conduct which make it permissible under applicable law for the
Company to indemnify Indemnitee for the Expenses claimed, the Company may file
an action in the Court of Chancery of the State of Delaware to obtain a
declaratory judgment that Indemnitee is not entitled under applicable law to
receive indemnification or advancement from the Company (hereinafter a “Declaratory Action”). If the
Company files a Declaratory Action, Indemnitee shall be entitled to receive
interim payments of Expenses pursuant to Subsection 2(a) including Expenses
incurred in defending a Declaratory Action unless and until the Court of
Chancery of the State of Delaware issues an order or judgment that Indemnitee is
not entitled under applicable law to receive indemnification or advancement from
the Company. If the Court of Chancery of the State of Delaware issues an order
or judgment in a Declaratory Action that Indemnitee is not entitled under
applicable law to receive indemnification or advancement from the Company, the
Company shall have no further obligation under this Agreement, the Company's
Certificate of Incorporation, the Company Bylaws or any other applicable law,
statute or rule to provide indemnification or advances of Expenses to Indemnitee
and Indemnitee shall be responsible for repaying all such amounts previously
advanced to Indemnitee as provided in Section 2(a).
(d) No Presumptions. 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, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law. In addition, 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.
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(e) Burden of Proof. In a
Declaratory Action, the burden of proof shall be on the Company to establish
that Indemnitee is not entitled to indemnification or advances.
(f) Notice to Insurers.
If, at the time of the receipt by the Company of a notice of a Claim pursuant to
Section 2(b) hereof, the Company has liability insurance in effect which may
cover such Claim, the Company shall give prompt notice of the commencement of
such Claim 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 Indemnitee, all
amounts payable as a result of such Claim in accordance with the terms of such
policies.
(g) Selection of Counsel.
In the event the Company shall be obligated hereunder to pay the Expenses of any
Claim, the Company shall be entitled to assume the defense of such Claim with
counsel approved by Indemnitee, which approval shall not be unreasonably
withheld, 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 Claim. Notwithstanding the Company's
assumption of the defense of any Claim, the Company shall be obligated to pay
the Expenses of any Claim if (A) the employment of counsel by Indemnitee has
been previously authorized by the Company, (B) the Company shall have reasonably
concluded that there is a conflict of interest between the Company and
Indemnitee in the conduct of any such defense such that Indemnitee needs to be
separately represented, or (C) the Company shall not continue to retain counsel
to defend such Claim, then the fees and expenses of counsel retained by
Indemnitee shall be at the expense of the Company. The Company shall have the
right to conduct such defense as it sees fit in its sole discretion, including
the right to settle any Claim against Indemnitee without the consent of the
Indemnitee.
3. Additional Indemnification
Rights; Nonexclusivity.
(a) Scope. The Company
hereby agrees to indemnify Indemnitee to the fullest extent permitted by law,
notwithstanding 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 after the date of
this Agreement in any applicable law, statute or rule which expands the right of
a Delaware corporation to indemnify a member of its Board of Directors or an
officer, employee, agent or fiduciary, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits afforded by
such change. 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 an officer, employee, agent or fiduciary, 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 except as set forth in Section 7(a)
hereof.
(b) Nonexclusivity. The
indemnification provided by this Agreement shall be in addition to 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 General Corporation Law of the State of Delaware,
or otherwise. The indemnification provided under this Agreement shall continue
as to Indemnitee for any action Indemnitee took or did not take while serving in
an indemnified capacity even though Indemnitee may have ceased to serve in such
capacity.
4. No Duplication of
Payments. The Company shall not be liable under this Agreement to make
any payment in connection with any Claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any insurance policy,
Certificate of Incorporation, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
5. Partial
Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for a portion of Expenses incurred
in connection with any Claim, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion of such
Expenses to which Indemnitee is entitled.
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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, agents or
fiduciaries 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. Exceptions. Any other
provision herein to the contrary notwithstanding, the Company shall not be
obligated pursuant to the terms of this Agreement:
(a) Excluded Action or
Omissions. To indemnify (i) any Claim by or in the right of the Company
as to which Indemnitee shall have been adjudged to be liable to the Company
unless and to the extent that the Court of Chancery of the State of Delaware or
such other court in which such Claim was brought, shall determine upon
application that despite the adjudication of liability, in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such Expenses such court shall deem proper, or (ii) any other
acts, omissions or transactions from which Indemnitee may not be relieved of
liability under Applicable law;
(b) Claims Initiated by
Indemnitee. To indemnify or advance expenses to Indemnitee with respect
to Claims initiated or brought voluntarily by Indemnitee and not by way of
defense, except (i) with respect to Claims brought to establish or enforce a
right to indemnification or advancement under this Agreement or any other
agreement or insurance policy or under the Company's Certificate of
Incorporation or Bylaws, as now or hereafter in effect relating to Claims for
Indemnifiable Events, (ii) in specific cases if the Board of Directors has
approved the initiation or bringing of such Claim, or (iii) as otherwise
required under Section 145 of the Delaware General Corporation Law, regardless
of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be;
(c) 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.
(d) Disgorgement of Profits and
Bonuses Pursuant to Section 304. To indemnify Indemnitee for (i) any
bonus or other incentive-based or equity-based compensation received by
Indemnitee or (ii) any profits arising from the sale of securities made by
Indemnitee that Indemnitee is required pursuant to Section 304 of the
Sabarnes-Oxley Act of 2002 to reimburse to the Company.
8. Period of
Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against Indemnitee,
Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of five (5) years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such five-year period; provided
, however ,
that if any shorter period of limitations is otherwise applicable to any such
cause of action, such shorter period shall govern.
9. Construction of Certain
Phrases.
(a) 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, agents or fiduciaries, so that if
Indemnitee is or was a director, officer, employee, agent or fiduciary of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, 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.
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(b) 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, agent or fiduciary of the Company which
imposes duties on, or involves services by, such director, officer, employee,
agent or fiduciary with respect to an employee benefit plan, its participants or
its 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 interests of the Company" as referred
to in this Agreement.
10. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
11. Binding Effect; Successors
and Assigns. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in effect with respect
to Claims relating to Indemnifiable Events regardless of whether Indemnitee
continues to serve as a director, officer, employee, agent or fiduciary of the
Company or of any other enterprise at the Company's request.
12. Notice. All notices
and other communications required or permitted hereunder shall be in writing,
shall be effective when given, and shall in any event be deemed to be given (a)
five (5) days after deposit with the U.S. Postal Service or other applicable
postal service, if delivered by first class mail, postage prepaid, (b) upon
delivery, if delivered by hand, (c) one business day after the business day of
deposit with Federal Express or similar overnight courier, freight prepaid, or
(d) one day after the business day of delivery by facsimile transmission with
confirmation of receipt, if delivered by facsimile transmission, with copy by
first class mail, postage prepaid, and shall be addressed if to Indemnitee, at
the Indemnitee address as set forth beneath Indemnitee signatures to this
Agreement and if to the Company at the address of its principal corporate
offices (attention: Secretary) or at such other address as such party may
designate by ten days' advance written notice to the other party
hereto.
13. Consent to
Jurisdiction. The Company and Indemnitee each hereby irrevocably consent
to the jurisdiction of the courts of the State of Delaware for all purposes in
connection with any action which arises out of or relates to this Agreement and
agree that any action instituted under this Agreement shall be commenced,
prosecuted and continued only in the Court of Chancery of the State of Delaware
in and for New Castle County, which shall be the exclusive and only proper forum
for adjudicating such a claim.
14. Severability. The
provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitations, each
portion of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
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15. Choice of Law. This
Agreement shall be governed by and its provisions construed and enforced in
accordance with the laws of the State of Delaware, as applied to contracts
between Delaware residents, entered into and to be performed entirely within the
State of Delaware, without regard to the conflict of laws principles
thereof.
16. 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 Indemnitee who shall
execute all documents required and shall do all acts that may be necessary to
secure such rights and to enable the Company effectively to bring suit to
enforce such rights.
17. Amendment and
Termination. No amendment, modification, termination or cancellation of
this Agreement shall be effective unless it is in writing signed by both 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.
18. Integration and Entire
Agreement. This Agreement sets forth the entire understanding between the
parties hereto and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements relating to the subject
matter hereof between the parties hereto.
19. No Construction as
Employment Agreement. Nothing contained in this Agreement shall be
construed as giving Indemnitee any right to be retained in the employ of the
Company or any of its subsidiaries.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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GENSPERA,
INC.
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By:
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Title:
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AGREED
TO AND ACCEPTED BY:
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Signature:
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Printed
Name:
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Address:
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