EXHIBIT 10.19
INDEMNITY AGREEMENT
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INDEMNITY AGREEMENT, dated as of _________, 2002 (this "Agreement"),
by and between Cell Therapeutics, Inc. (the "Company"), a Washington
corporation, and ___________ ("Indemnitee").
W I T N E S S E T H:
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WHEREAS, the Company desires to attract and retain the services of
able persons to serve as officers and directors of the Company and to indemnify
certain of its officers, and its directors, except as otherwise provided in
Section 3 of this Agreement, to the fullest extent of the law;
WHEREAS, the Company and Indemnitee recognize the increasing
difficulty in obtaining officers' and directors' liability insurance, the
significant increase in the cost of such insurance and the general reduction in
the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting officers and directors
to expensive litigation risks at the same time that liability insurance has been
severely limited; and
WHEREAS, neither Indemnitee nor the Company regards statutory
indemnification protection as adequate given the present circumstances;
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. (a) Third-Party Proceedings. The Company shall indemnify Indemnitee to
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the full extent of Washington law, except as otherwise provided in Section 3 of
this Agreement, if Indemnitee is or was a party or is threatened to be made a
party to any threatened, pending or completed suit, action, proceeding,
arbitration or alternative dispute resolution mechanism, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company or any subsidiary of the
Company, by reason of any action or inaction on the part of Indemnitee while an
officer or director of the Company or any subsidiary of the Company or by reason
of the fact that Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with such
action or proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company and its stockholders, and, with respect to any criminal action or
proceeding, had no reasonable cause to
believe his conduct was unlawful.
(b) Proceedings By or in the Right of the Company. The Company shall
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indemnify Indemnitee to the full extent of Washington law, except as otherwise
provided in Section 3 of this Agreement, if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by or in the right of the Company or any subsidiary of the
Company to procure a judgment in its favor by reason of the fact that Indemnitee
is or was a director, officer, employee or agent of the Company or any
subsidiary of the Company, by reason of any action or inaction on the part of
Indemnitee while an officer or director of the Company or any subsidiary of the
Company or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) and, to the fullest extent permitted by
Washington law, amounts paid in settlement (if such settlement is approved by
the Company, which approval shall not be unreasonably withheld), in each case to
the extent actually and reasonably incurred by Indemnitee in connection with the
defense or settlement of such action or proceeding if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company and its stockholders, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Company and its
stockholders in the performance of Indemnitee's duty to the Company and its
stockholders unless and only to the extent that the court in which such action
or proceeding is or was pending shall determine that in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for expenses, and then only to the extent that the court shall
determine.
(c) Selection of Counsel. In the event the Company shall be obligated
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under Section 1(a) or (b) hereof to pay the expenses of any proceeding against
Indemnitee, the Company shall be entitled to assume the defense of such
proceeding, with counsel approved by Indemnitee (which shall not unreasonably
withhold such approval), upon the delivery to Indemnitee of written notice of
its election so to do. After delivery of such notice, approval of such counsel
by Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same proceeding,
provided, that, (i) Indemnitee shall have the right to employ his counsel in any
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such proceeding at Indemnitee's expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized in writing by the Company,
(B) Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such defense
and shall have notified the Company in writing thereof, (C) Indemnitee shall
have reasonably concluded that there may be a conflict of interest between
Indemnitee and other indemnitees of the Company being represented by counsel
retained by the Company in the same proceeding and shall have notified the
Company in writing thereof or (D) the Company shall not, in fact, have employed
counsel to assume the defense of such proceeding, then the fees and expenses of
Indemnitee's counsel shall be at the expense of the Company.
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2. Contribution. If, when Indemnitee has met the applicable standard of
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conduct, the indemnification provisions set forth in Section 1 should, under
applicable law, be to any extent unenforceable, then the Company agrees that it
shall be treated as though it is or was a party to the threatened, pending or
completed action, suit or proceeding in which Indemnitee is or was involved and
that the Company shall contribute to the amounts paid or payable by Indemnitee
as a result of such expenses (including attorneys' fees), judgments in
third-party proceedings, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and Indemnitee on the
other in connection with such action or inaction, or alleged action or inaction,
as well as any other relevant equitable considerations.
For purposes of this Section 2, the relative benefit to the Company
shall be deemed to be the benefits accruing to it and to all of its directors,
officers, employees and agents (other than Indemnitee), as a group and treated
as one entity, and the relative benefit to Indemnitee shall be deemed to be an
amount not greater than Indemnitee's yearly base salary or director's
compensation from the Company during the first year in which the action or
inaction, or alleged action or inaction, forming the basis for the threatened,
pending or contemplated suit, action or proceeding was alleged to have occurred
plus the amount, if any, of monetary benefit and other consideration received by
Indemnitee in the transaction(s) that gave rise to such suit, action or
proceeding. The relative fault shall be determined by reference to, among other
things, the fault of the Company and all of its directors, officers, employees
and agents (other than Indemnitee), as a group and treated as one entity, and
such group's relative intent, knowledge, access to information and opportunity
to have altered or prevented the action or inaction, or alleged action or
inaction, forming the basis for the threatened, pending or contemplated action,
suit or proceeding, and Indemnittee's relative fault in light of such factors on
the other hand.
3. Limitations to Rights of Indemnification and Advancement of Expenses.
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Except as otherwise provided in Sections 9 and 11 of this Agreement, Indemnitee
shall not be entitled to indemnification or advancement of expenses under this
Agreement:
(a) with respect to any action, suit or proceeding initiated, brought
or made by Indemnitee (i) against the Company, unless a Change in Control
(as defined in Section 5(b) of this Agreement) shall have occurred, or (ii)
against any person other than the Company, unless approved in advance by
the board of directors of the Company (the "Board");
(b) on account of any suit in which it shall be determined by final
judgment by a court having jurisdiction in the matter that Indemnitee
intentionally caused or intentionally contributed to the injury complained
of with the knowledge that such injury would occur;
(c) on account of Indemnitee's conduct which shall be determined by
final judgment by a court having jurisdiction in the matter that Indemnitee
was knowingly fraudulent, deliberately dishonest, engaged in willful
misconduct or that Indemnitee
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received an improper personal benefit;
(d) for any expenses incurred by Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement,
to the extent that a court of competent jurisdiction determines that any of
the material assertions made by Indemnitee in such proceeding was not made
in good faith or was frivolous;
(e) for expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) which have been paid directly to Indemnitee by
an insurance carrier under a policy of officers' and directors' liability
insurance maintained by the Company;
(f) for expenses or 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 (the "Exchange Act"), or any
similar successor statute; and
(g) if it shall be determined by final judgment by a court having
jurisdiction in the matter that such indemnification is not lawful.
4. Procedure for Determination of Entitlement to Indemnification. (a) To
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obtain indemnification under this Agreement, Indemnitee shall submit to the
Company a written request, including such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested
indemnification.
(b) Upon written request by Indemnitee for indemnification, a
determination with respect to Indemnitee's entitlement thereto shall be made in
the specific case as follows:
(i) if a Change in Control (as defined in Section 5(b) of this
Agreement) shall have occurred, by Independent Counsel (as defined in
Section 5(a) of this Agreement) in a written opinion to the Board, a copy
of which shall be delivered to Indemnitee (unless Indemnitee shall request
that such determination be made by the Board or the Stockholders, in which
case the determination shall be made in the manner provided below in clause
(ii)); or
(ii) if a Change in Control shall not have occurred, (A) by the Board
by a majority vote of a quorum consisting of disinterested directors, (B)
if a quorum of the Board consisting of disinterested directors is not
obtainable or, even if obtainable, such quorum of disinterested directors
so directs, by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee or (C) by the Stockholders
of the Company.
(c) If it is so determined that Indemnitee is entitled to
indemnification,
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payment to Indemnitee shall be made within ten (10) days after such
determination. Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information that is not
privileged or otherwise protected from disclosure and that is reasonably
available to indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating shall be borne by the Company (irrespective of the
determination as to Indemnitee's entitlement to indemnification) and the Company
hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(d) If a Change in Control shall not have occurred, the
Independent Counsel shall be selected by the Board, and the Company shall give
written notice to Indemnitee advising him of the identity of the Independent
Counsel so selected. If a Change in Control shall have occurred, the Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall request that
such selection be made by the Board), and Indemnitee shall give written notice
to the Company advising it of the identity of the Independent Counsel so
selected. In either event, Indemnitee or the Company, as the case may be, may,
within 7 days after such written notice of selection shall have been given,
deliver to the Company or to Indemnitee, as the case may be, a written objection
to such selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 5(a) of this Agreement, and the objection shall
set forth with particularity the factual basis of such assertion. If such
written objection is made, the Independent Counsel so selected may not serve as
Independent Counsel unless and until a court has determined that such objection
is without merit. If, twenty (20) days after submission by Indemnitee of a
written request for indemnification pursuant to Section 4 hereof, no Independent
Counsel shall have been selected or if selected, shall have been objected to, in
accordance with this Section 4(d), either the Company or Indemnitee may petition
any court of the State of Washington or other court of competent jurisdiction
for resolution of any objection which shall have been made by the Company or
Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate. The person with respect to whom an
objection is favorably resolved or the person so appointed shall act as
Independent Counsel under Section 4 hereof. The Company shall pay any and all
reasonable fees and expenses incident to the procedures of this Section 4,
including reasonable fees and expenses incurred by such Independent Counsel
regardless of the manner in which such Independent Counsel was selected or
appointed.
5. (a) "Independent Counsel" means a law firm or a member of a law
firm that neither at the time in question, nor in the five years immediately
preceding such time has been retained to represent (i) the Company or Indemnitee
in any matter material to either such party or (ii) any other party to the
proceeding giving rise to a claim for indemnification under this Agreement.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing under the law of the state of Washington, would be precluded from
representing either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement.
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(b) "Change in Control" means the occurrence of any of the following
events:
(i) the Company is merged, consolidated or reorganized into or
with another corporation or other entity, and as a result of such merger,
consolidation or reorganization less than a majority of the combined voting
power of the then-outstanding securities of such corporation or entity
immediately after such transaction are held in the aggregate by the holders
of voting stock of the Company immediately prior to such transaction;
(ii) the Company sells or otherwise transfers all or
substantially all of its assets to another corporation or other entity and,
as a result of such sale or transfer, less than a majority of the combined
voting power of the then-outstanding securities of such other corporation
or entity immediately after such sale or transfer is held in the aggregate
by the holders of voting stock of the Company immediately prior to such
sale or transfer;
(iii) there is a report filed on Schedule 13D or Schedule 14D-l
(or any successor schedule, form or report or item therein), each as
promulgated pursuant to the Exchange Act, disclosing that any person or
entity, other than any shareholder of the Company (and its affiliates)
owning 10% or more of the Company's voting stock on the date hereof, has
become the beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or regulation promulgated under the
Exchange Act) of securities representing 50% or more of the combined voting
power of the Company's voting stock; or
(iv) if during any period of two consecutive years individuals
who at the beginning of any such period constitute the Board cease for any
reason to constitute at least a majority thereof; provided, however, that
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for purposes of this clause (iv) each director of the Company who is first
elected, or first nominated for election by the Company's stockholders, by
a vote of at least majority of the directors of the Company (or a committee
of the Board) then still in office who were directors of the Company at the
beginning of any such period shall be deemed to have been a director of the
Company at the beginning of such period.
Notwithstanding the provisions of clause (iii) above, unless otherwise
determined in the specific case by majority vote of the Board, a "Change in
Control" shall not be deemed to have occurred solely because the Company, any
subsidiary or any employee stock ownership plan or any other employee benefit
plan of the Company or any subsidiary either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D, Schedule
14D-l or Schedule 14A (or any successor schedule, form or report or item
therein) under the Exchange Act disclosing beneficial ownership by it of shares
of voting stock of the Company, whether in excess of 50% or otherwise, or
because the Company reports that a change in control of the company has occurred
or will occur in the future by reason of such beneficial ownership.
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6. Presumptions and Effect of Certain Proceedings. (a) In making a
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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 if Indemnitee has
submitted a request for indemnification in accordance with Section 4 of this
Agreement, and the Company shall bear the burden of proof to rebut that
presumption in connection with the making by any person, persons or entity of
any determination contrary to that presumption.
(b) The termination of any action, suit, arbitration,
alternative dispute resolution mechanism, investigation, administrative hearing
or other proceeding whether civil, criminal, administrative or investigative 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
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(except as otherwise expressly provided in this Agreement) of itself adversely
affect the right of Indemnitee to indemnification or create a presumption that
Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company or, with
respect to any criminal action or proceeding, that Indemnitee had reasonable
cause to believe that his conduct was unlawful.
(c) Indemnitee's conduct with respect to an employee benefit
plan for a purpose he reasonably believed to be in the interests of the
participants in and beneficiaries of the plan shall be deemed to be conduct that
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company.
(d) For purposes of any determination hereunder, Indemnitee
shall be deemed to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to
believe his conduct was unlawful, if his action was based on (i) the records or
books of account of the Company or another enterprise, including financial
statements, (ii) information supplied to him by the officers of the Company or
another enterprise in the course of their duties, (iii) the advice of legal
counsel for the Company or another enterprise, or (iv) information or records
given or reports made to the Company or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Company or another enterprise. The term "another
enterprise" as used in this Section 6 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as an officer,
director, partner, trustee, employee or agent. The provisions of this Section
6(d) shall not be deemed to limit in any way the other circumstances in which
Indemnitee may be deemed to have met the applicable standard of conduct set
forth in Section 1.
7. Success on Merits or Otherwise. Notwithstanding any other
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provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any action, suit or proceeding
described in Section 1 hereof, or in defense of any
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claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal thereof. For
purposes of this Section 7, the term "successful on the merits or otherwise"
shall include, but not be limited to, (i) any termination, withdrawal or
dismissal (with or without prejudice) of any claim, action, suit or proceeding
against Indemnitee without any express finding of liability or guilt against
him, (ii) the expiration of 180 days after the making of any claim or threat of
an action, suit or proceeding without the institution of the same and without
any promise of payment or payment made to induce a settlement or (iii) the
settlement of any action, suit or proceeding under Section 1, pursuant to which
Indemnitee pays less than $25,000.
8. Partial Indemnification. If Indemnitee is entitled under any
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provision of this Agreement to indemnification by the Company for some or a
portion of the claims, damages, expenses (including attorneys' fees), judgments,
fines or amounts paid in settlement by Indemnitee in connection with the
investigation, defense, settlement or appeal of any action specified in Section
1, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. The party or parties making the determination shall determine the
portion (if less than all) of such claims, damages, expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement for which
Indemnitee is entitled to indemnification under this Agreement.
9. Costs. All the costs of making the determination required by
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Section 4 hereof shall be borne solely by the Company, including, but not
limited to, the costs of legal counsel, proxy solicitations and judicial
determinations. The Company shall also be solely responsible for paying (i) all
reasonable expenses incurred by Indemnitee to enforce this Agreement, including,
but not limited to, the costs incurred by Indemnitee to obtain court-ordered
indemnification pursuant to Section 11, regardless of the outcome of any such
application or proceeding, and (ii) all costs of defending any suits or
investigations or proceedings challenging payments to Indemnitee under this
Agreement.
10. Advance of Expenses. The Company shall advance all expenses
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incurred by or on behalf of Indemnitee in connection with any action, suit,
arbitration, alternative dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative within twenty (20) days after the receipt by the
Company of a statement or statements from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of such
action, suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative. Such statement or statements shall
reasonably evidence the expenses incurred by Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay
any expenses advanced if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such expenses, which undertaking shall be
accepted by or on behalf of the Company without reference to the financial
ability of Indemnitee to make repayment, and without the pledging of any
security by Indemnitee. Notwithstanding Indemnitee's above-described rights to
advancement of
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expenses, no advance of expenses shall be made in the circumstances proscribed
by Section 3(a).
11. Enforcement. (a) If a claim for indemnification or advancement of
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expenses made to the Company pursuant to Section 3 or 10 is not timely paid in
full to Indemnitee by the Company as required by Section 3 or 10, respectively,
Indemnitee shall be entitled to seek judicial enforcement of the Company's
obligations to make such payment. In the event that a determination is made that
Indemnitee is not entitled to indemnification or advancement of expenses
hereunder, (i) Indemnitee may at any time thereafter seek a de novo adjudication
of his entitlement to such indemnification or advancement either, at
Indemnitee's sole option, in (A) an appropriate court of the state of Washington
or any other court of competent jurisdiction or (B) an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (ii) any such judicial proceeding or arbitration shall
not in any way be prejudiced by, and Indemnitee shall not be prejudiced in any
way by such adverse determination; and (iii) in any such judicial proceeding or
arbitration the Company shall have the burden of proving that Indemnitee is not
entitled to indemnification or advancement of expenses under this Agreement.
(b) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to the provisions of Section 11(a)
that the procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
(c) In any action brought under this Section 11, it shall be a
defense to a claim for indemnification (other than an action brought to enforce
a claim for advancement of expenses) that Indemnitee has not met the standards
of conduct which make it permissible under Washington law for the Company to
indemnify Indemnitee for the amount claimed. The burden of proving such defense
shall be on the Company.
(d) It is the intent of the Company that Indemnitee not be required
to incur the expenses associated with the enforcement of his rights under this
Agreement by litigation or other legal action because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
Indemnitee hereunder. Accordingly, 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 any action to declare
this Agreement void or unenforceable, or institutes any action, suit or
proceeding designed (or having the effect of being designed) to deny, or to
recover from, Indemnitee the benefits intended to be provided to Indemnitee
hereunder, the Company irrevocably authorizes Indemnitee from time to time to
retain counsel of his choice, at the expense of the Company as hereafter
provided, to represent Indemnitee in connection with 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. Regardless of the outcome thereof, but subject to
Indemnitee having acted in good faith, the Company shall pay and be solely
responsible for any and all costs, charges and expenses, including attorneys'
and others' fees and expenses,
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incurred by Indemnitee (i) as a result of the Company's failure to perform this
Agreement or any provision thereof or (ii) as a result of the Company's or any
person's contesting the validity or enforceability of this Agreement or any
provision thereof as aforesaid.
12. Liability Insurance and Funding. To the extent the Company maintains
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an insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for any
director or officer of the Company. If, at the time of the receipt of a notice
of a claim pursuant to Section 4 hereof, the Company has director's and
officer's liability insurance in effect, the Company shall give prompt notice of
the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies. The Company shall have no obligation to obtain
or maintain such insurance.
13. Merger or Consolidation. In the event that the Company shall be a
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constituent corporation in a merger, consolidation or other reorganization, the
Company shall require as a condition thereto, (a) if it shall not be the
surviving, resulting or other corporation therein, the surviving, resulting or
acquiring corporation to agree to indemnify Indemnitee to the full extent
provided herein, and (b) whether or not the Company is the surviving, resulting
or acquiring corporation therein, Indemnitee shall also stand in the same
position under this Agreement with respect to the surviving, resulting or
acquiring corporation as he would have with respect to the Company if its
separate existence had continued.
14. Nondisclosure of Payments. Except as expressly required by federal
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securities laws or other applicable laws, Indemnitee shall not disclose any
payments made under this Agreement, whether indemnification or advancement of
expenses, unless prior approval of the Company is obtained. Any payments to
Indemnitee that must be disclosed shall, unless otherwise required by law, be
described only in the Company proxy or information statements relating to
special and/or annual meetings of the Company's shareholders, and the Company
shall afford Indemnitee the reasonable opportunity to review all such
disclosures and, if requested, to explain in such statement any mitigating
circumstances regarding the events reported.
15. Nonexclusivity and Severability. (a) The right to indemnification and
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advancement of expenses provided by this Agreement shall not be exclusive of any
other rights to which Indemnitee may be entitled under the Certificate of
Incorporation or Bylaws of the Company, Washington law, any other statute,
insurance policy, agreement, vote of stockholders of the Company or of the Board
(or otherwise), both as to actions in his official capacity and as to actions in
another capacity while holding such office, and shall continue after Indemnitee
has ceased to be a director or officer of the Company and shall inure to the
benefit of his heirs, executors and administrators; provided, however, that to
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the extent Indemnitee otherwise would have any greater right to indemnification
and/or advancement of expenses under any provision of the Certificate of
Incorporation or the Bylaws of the Company, Indemnitee shall be deemed to
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have such greater right pursuant to this Agreement; and, provided, further, that
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to the extent that any change is made to the Washington law (whether by
legislative action or judicial decision), the Certificate of Incorporation
and/or the Bylaws that permits any greater right to indemnification and/or
advancement of expenses than that provided under this Agreement as of the date
hereof, Indemnitee shall be deemed to have such greater right pursuant to this
Agreement.
(b) If any provision or provisions of this Agreement are held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including without limitation all portions of any provisions 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
provisions 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.
16. Notices. All notices, requests, demands and other communications under
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this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressed, on the date of such
receipt, or (ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked. Addresses for
notice to either party are as shown on the signature page of this Agreement, or
as subsequently modified by written notice.
17. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge
---------------------
that in certain instances federal law or public policy may override applicable
state law and prohibit the Company from indemnifying its directors and officers
under this Agreement or otherwise. For example, the Company and Indemnitee
acknowledge that the Securities and Exchange Commission (the "SEC") has taken
the position that indemnification is not permissible for liabilities arising
under certain federal securities laws, and federal legislation prohibits
indemnification for certain ERISA violations. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the SEC 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.
18. Governing Law/Effectiveness. This Agreement shall be governed by and
---------------------------
construed in accordance with the laws of the state of Washington, without giving
effect to principles of conflict of laws. This Agreement shall become effective
on the date that the Indemnitee began or begins to serve as an officer or
director of the Company.
19. Consent to Jurisdiction. The Company and Indemnitee each hereby
-----------------------
irrevocably consent to the jurisdiction of the courts of the state of Washington
for all purposes in connection with any action, suit or proceeding which arises
out of or relates to this Agreement.
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20. Modification; Survival. This Agreement may be modified only by an
----------------------
instrument in writing signed by both parties hereto. The provisions of this
Agreement shall survive the death, disability or incapacity of Indemnitee or the
termination of Indemnitee's service as a director or officer of the Company and
shall inure to the benefit of Indemnitee's heirs, executors and administrators.
In witness whereof, the parties hereto have executed this Agreement as
of the date first above written.
INDEMNITEE CELL THERAPEUTICS, INC.
000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
By:____________________________ By:___________________________
Name: Name:
Address:____________________ Title:
____________________________
____________________________
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