RAPTOR PHARMACEUTICAL CORP. INDEMNITY AGREEMENT
Exhibit
10.1
INDEMNITY
AGREEMENT
This
Indemnity Agreement (this “Agreement”)
is made and entered into as of December ____, 2009, to be effective as of
September 29, 2009, by and between Raptor Pharmaceutical Corp., a
Delaware corporation (the “Company”),
and [___] (“Agent”).
Recitals
WHEREAS, Agent performs a
valuable service to the Company in [his/her] capacity as [_____];
WHEREAS, the Company’s Bylaws,
as amended (the “Bylaws”),
which were approved by the stockholders of the Company, provide for the
indemnification of the directors, officers, employees and other agents of the
Company, including persons serving at the request of the Company in such
capacities with other corporations or enterprises, as authorized by the Delaware
General Corporation Law (the “DGCL”);
WHEREAS, the Bylaws and the
DGCL, by their non-exclusive nature, permit contracts between the Company and
its agents, officers, employees and other agents with respect to indemnification
of such persons; and
WHEREAS, in order to induce
Agent to continue to serve in his capacity as described above, the Company has
determined and agreed to enter into this Agreement with Agent.
NOW, THEREFORE, in
consideration of Agent’s continued service as described above after the date
hereof, the parties hereto agree as follows:
Agreement
1. Services to the
Company. Agent will serve, at the will of the Company or under
separate contract, if any such contract exists, as [___] or as a director,
executive officer or other fiduciary of the Company or of an affiliate of the
Company, including any subsidiary or employee benefit plan of the Company (each,
an “Affiliate”),
faithfully and to the best of Agent’s ability so long as Agent remains in such
position(s); provided,
however, that Agent may at any time and for any reason resign from such
position(s) (subject to any contractual obligation that Agent may have assumed
apart from this Agreement or any obligation imposed by operation of law) and
that neither the Company nor any Affiliate shall have an obligation under this
Agreement to continue Agent in any such position(s). This Agreement
shall not be deemed an employment contract between the Company (or any of its
subsidiaries) and Agent. The foregoing notwithstanding, this
Agreement shall continue in force after Agent has ceased to serve as [____] of
the Company (or one of its subsidiaries).
2. Indemnity of
Agent. The Company hereby agrees to hold harmless and
indemnify Agent to the fullest extent authorized or permitted by the provisions
of the Bylaws and the DGCL, as the same may be amended from time to time (but
only to the extent that such amendment permits the Company to provide broader
indemnification rights than the Bylaws or the DGCL permitted prior to adoption
of such amendment).
3. Additional
Indemnity. In addition to and not in limitation of the
indemnification otherwise provided for herein, and subject only to the
exclusions set forth in Section 4 hereof, the Company hereby further agrees to
hold harmless and indemnify Agent:
(a) Against
any and all Expenses (as defined below) that Agent becomes legally obligated to
pay because of any claim or claims made against or by Agent in connection with
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, arbitrational, administrative or investigative, and whether formal or
informal (including an action by or in the right of the Company), to which Agent
is, was or at any time becomes a party or a participant, including as a witness
or otherwise, or is threatened to be made a party, by reason of the fact that
Agent is, was or at any time becomes a director, officer, employee or other
agent of the Company, or is or was serving or at any time serves at the request
of the Company as a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, including a subsidiary of the Company (collectively, a “Proceeding”). The
definition of Proceeding shall be considered met if Agent in good faith believes
the situation might lead to the institution of a Proceeding. “Expenses”
shall mean all expenses, including attorneys’ fees, witness fees, damages,
judgments, fines and amounts paid in settlement, any federal, state, local or
foreign taxes imposed on Agent as a result of the actual or deemed receipt of
any payments under this Agreement, ERISA excise taxes and penalties imposed on
Agent, costs associated with any appeals, including without limitation the
premium, security for, and other costs relating to any costs bond, supersedes
bond, or other appeal bond or its equivalent, and any other amounts for time
spent by Agent for which Agent is not compensated by the Company or any
Affiliate or third party (i) for any period during which Agent is not an agent,
in the employment of, or providing services for compensation to, the Company or
any Affiliate, and (ii) if the rate of compensation and the estimated time
involved is approved by the members of the Company’s Board of Directors (the
“Board”)
who are not parties to any action with respect to which expenses are incurred,
for Agent while an agent of, employed by, or providing services for compensation
to the Company or any Affiliate.
(b) Otherwise
to the fullest extent as may be provided to Agent by the Company under the
non-exclusivity provisions of the DGCL and Article XI, Section 44 of the Bylaws,
as the same may be amended from time to time (but only to the extent that such
amendment permits the Company to provide broader indemnification rights than
permitted prior to adoption of such amendment).
4. Limitations on Additional
Indemnity. No indemnity pursuant to Section 2 or 3 hereof
shall be paid by the Company:
(a)On
account of any claim against Agent solely for an accounting of profits made from
the purchase or sale by Agent of securities of the Company pursuant
to the provisions of Section 16(b) (“Section 16(b)”) of the Exchange Act of
1934, as amended (the “Exchange Act”), or similar provisions of any federal,
state or local law; provided that, with respect to a claim
against Agent solely for an accounting of profits made from the
purchase or sale by Agent of securities of the Company pursuant to the
provisions of Section 16(b), Agent shall be entitled to the advancement of
legal expenses unless the Company reasonably determines that Agent clearly
violated Section 16(b) and must disgorge profits to the Company pursuant to the
terms thereof. Notwithstanding
anything to the contrary stated or implied in this Section 4(a), indemnification
pursuant to this Agreement relating to any Proceeding against Agent for an
accounting of profits made from the purchase or sale by Agent of securities of
the Company pursuant to the provisions of Section 16(b) or similar
provisions of any federal, state or local laws shall not be prohibited if Agent
ultimately establishes in any Proceeding that no recovery of such profits from
Agent is permitted under Section 16(b) or similar provisions of any federal,
state or local laws;
(b) on
account of Agent’s conduct that is established by a final judgment as knowingly
fraudulent or deliberately dishonest or that constituted willful
misconduct;
(c) on
account of Agent’s conduct that is established by a final judgment as
constituting a breach of Agent’s duty of loyalty to the Company or resulting in
any personal profit or advantage to which Agent was not legally
entitled;
(d) for which
payment is actually made to Agent under a valid and collectible insurance policy
or under a valid and enforceable indemnity clause, bylaw or agreement, except in
respect of any excess beyond payment under such insurance clause, bylaw or
agreement;
(e) if
indemnification is not lawful; or
(f) in
connection with any Proceeding (or part thereof) initiated by Agent, or any
Proceeding by Agent against the Company or its directors, officers, employees or
other agents, unless (i) such indemnification is expressly required to be made
by law, (ii) the Proceeding was authorized by the Board, (iii) such
indemnification is provided by the Company, in its sole discretion, pursuant to
the powers vested in the Company under the DGCL or any other applicable law,
(iv) the Proceeding is initiated pursuant to Section 9 hereof, and (v) the
Proceeding initiated by Agent is a cross-claim or counter-claim.
5. Continuation of
Indemnity. All agreements and obligations of the Company
contained herein shall continue during the period Agent is a director, officer,
employee or other agent of the Company (or is or was serving at the request of
the Company as a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise) and shall continue thereafter so long as Agent shall be subject to
any Proceeding by reason of the fact that Agent was serving in the capacity
referred to herein.
6. Partial
Indemnification. Agent shall be entitled under this Agreement
to indemnification by the Company for a portion of the Expenses that Agent
becomes legally obligated to pay in connection with any Proceeding referred to
in Section 3 hereof even if not entitled hereunder to indemnification for the
total amount thereof, and the Company shall indemnify Agent for the portion
thereof to which Agent is entitled.
7. Notification and Defense of
Claim. Not later than 30 days after receipt by Agent of notice
of the commencement of any Proceeding, Agent will, if a claim in respect thereof
is to be made against the Company under this Agreement, notify the Company of
the commencement thereof; but the omission so to notify the Company will not
relieve it from any liability which it may have to Agent otherwise than under
this Agreement. With respect to any such Proceeding as to which Agent
notifies the Company of the commencement thereof:
(a) the
Company will be entitled to participate therein at its own expense;
(b) except as
otherwise provided below, the Company may, at its option and jointly with any
other indemnifying party similarly notified and electing to assume such defense,
assume the defense thereof, with counsel reasonably satisfactory to
Agent. After notice from the Company to Agent of its election to
assume the defense thereof, the Company will not be liable to Agent under this
Agreement for any expenses subsequently incurred by Agent in connection with the
defense thereof except for reasonable costs of investigation or otherwise as
provided below. Agent shall have the right to employ separate counsel
in such Proceeding, but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense thereof shall be at the
expense of Agent unless (i) the employment of counsel by Agent has been
authorized by the Company, (ii) Agent has reasonably concluded, and so notified
the Company, that there is an actual conflict of interest between the Company
and Agent in the conduct of the defense of such action, (iii) the Company shall
not in fact have employed counsel to assume the defense of such action, in each
of which cases the fees and expenses of Agent’s separate counsel shall be at the
expense of the Company, or (iv) Agent shall have reasonably concluded that
counsel engaged by the Company on behalf of Agent may not adequately represent
Agent. If, under applicable laws and rules of attorney professional
conduct, there exists a potential, but not actual, conflict of interest between
the Company and Agent, the Company’s indemnification and Expense advancement
obligations to Agent under this Agreement shall include reasonable legal fees
and reasonable costs incurred by Agent for separate counsel retained by Agent to
monitor the Proceeding (so that such separate counsel may assume Agent’s defense
if the conflict of interest between the Company and Agent becomes an actual
conflict of interest). The existence of an actual or potential
conflict, and whether any such conflict may be waived, shall be determined
pursuant to the rules of attorney professional conduct and applicable
law. The Company shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Company or as to which Agent shall
have made the conclusion provided for in clause (ii) above; and
(c) the
Company shall not be liable to indemnify Agent under this Agreement for any
amounts paid in settlement of any action or claim effected without its written
consent, which shall not be unreasonably withheld. The Company shall
be permitted to settle any action except that it shall not settle any action or
claim in any manner which would impose any penalty or limitation on Agent
without Agent’s written consent, which may be given or withheld in Agent’s sole
discretion.
8. Advances
of Expenses.
(a) Agent
shall have the right to advancement by the Company prior to the final
adjudication of any Proceeding of any and all Expenses relating to, arising out
of or resulting from any Proceeding paid or incurred by Agent or which Agent
determines are reasonably likely to be paid or incurred by Agent. The
right to advances under this paragraph shall in all events continue until final
disposition of any Proceeding, including any appeal therein. Advances
shall be made without regard to Agent's ability to repay the Expenses and
without regard to Agent's ultimate entitlement to indemnification under the
other provisions of this Agreement. Advances shall be unsecured and
interest free. Advances shall include any and all reasonable
Expenses incurred in pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding statements to the Company
to support the advances claimed.
(b) Agent’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 Agent, the Company
shall, in accordance with such request (but without duplication), (i) pay such
Expenses on behalf of Agent, (ii) advance to Agent funds in an amount sufficient
to pay such Expenses, or (iii) reimburse Agent for such Expenses.
(c) Agent
shall qualify for advances upon the execution and delivery to the Company of
this Agreement, which shall constitute an undertaking providing that the Agent
undertakes to the fullest extent permitted by law to repay an advance of
Expenses (without interest) if and to the extent that it is ultimately
determined by a court of competent jurisdiction in a final judgment, not subject
to appeal, that Agent is not entitled to be indemnified by the
Company. No other form of undertaking shall be required other than
the execution of this Agreement.
9. Enforcement;
Presumption of Entitlement.
(a) Any right
to indemnification or advances granted by this Agreement to Agent shall be
enforceable by or on behalf of Agent in any court of competent jurisdiction if
(i) the claim for indemnification or advances is denied, in whole or in part, or
(ii) no disposition of such claim is made within 30 days of request
therefor. Agent, in such enforcement action, if successful in whole
or in part, shall be entitled to be paid also the expense of prosecuting Agent’s
claim.
(b) It shall
be a defense to any action for which a claim for indemnification is made under
Section 3 hereof (other than an action brought to enforce a claim for Expenses
pursuant to Section 8 hereof) that Agent is not entitled to indemnification
because of the limitations set forth in Section 4 hereof. Neither the
failure of the Company (including the Board or the Company’s stockholders) to
have made a determination prior to the commencement of such enforcement action
that indemnification of Agent is proper in the circumstances, nor an actual
determination by the Company (including the Board or the Company’s stockholders)
that such indemnification is improper shall be a defense to the action or create
a presumption that Agent is not entitled to indemnification under this Agreement
or otherwise.
(c) In any
such Proceeding instituted by Agent pursuant to this Section 9, the Company
shall be precluded from asserting that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any such
court that the Company is bound by all the provisions of this Agreement and is
precluded from making any assertion to the contrary.
(d) In making
any determination concerning Agent’s right to indemnification, there shall be a
presumption that Agent 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 determination concerning Agent’s right
to indemnification that is adverse to Agent may be challenged by Agent in the
Court of Chancery of the State of Delaware. No determination by the
Company (including without limitation by its directors or any independent
counsel) that Agent has not satisfied any applicable standard of conduct shall
be a defense to any claim by Agent for indemnification or reimbursement or
advance payment of Expenses by the Company hereunder or create a presumption
that Agent has not met any applicable standard of conduct.
(e) The
termination of any Proceeding by judgment, order, settlement (with or without
court approval), conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of Agent to indemnification or create a
presumption that Agent did not act in good faith and in a manner which Agent
reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal proceeding, that Agent had reasonable cause to
believe that Agent’s conduct was unlawful.
(f) If the
person or persons so empowered to make a determination concerning Agent’s right
to indemnification pursuant to this Agreement shall have failed to make the
requested determination within 30 days after any judgment, order, settlement,
dismissal, arbitration award, conviction, acceptance of a plea of nolo
contendere or its equivalent, or other disposition or partial disposition of any
Proceeding or any other event that could enable the Company to determine Agent’s
entitlement to indemnification, the requisite determination that Agent is
entitled to indemnification shall be deemed to have been made.
(g) The
remedies provided for in this Section 9 shall be in addition to any other
remedies available to Agent at law or in equity.
10. 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 Agent, 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.
11. Non-Exclusivity of
Rights. The rights conferred on Agent by this Agreement shall
not be exclusive of any other right which Agent may have or hereafter acquire
under any statute, provision of the Company’s certificate of incorporation or
Bylaws, each as may be amended from time to time, agreement, vote of
stockholders or directors, or otherwise, both as to action in Agent’s official
capacity and as to action in another capacity while holding office.
12. Survival
of Rights.
(a) The
rights conferred on Agent by this Agreement shall continue after Agent has
ceased to be a director, officer, employee or other agent of the Company or to
serve at the request of the Company as a director, officer, employee or other
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and shall inure to the benefit of Agent’s
heirs, executors and administrators.
(b) The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company 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.
13. Contribution.
(a) If the
indemnification provided for by this Agreement is unavailable in whole or in
part and may not be paid to Agent for any reason other than those set forth in
Section 4, then in respect to any Proceeding in which the Company is jointly
liable with Agent (or would be if joined in such Proceeding), to the fullest
extent permissible under applicable law, the Company, in lieu of indemnifying
and holding harmless Agent, shall pay, in the first instance, the entire amount
of Expenses incurred by Agent in connection with any Proceeding without
requiring Agent to contribute to such payment, and the Company hereby waives and
relinquishes any right of contribution it may have at any time against
Agent.
(b) The
Company hereby agrees to fully indemnify and hold harmless Agent from any claims
for contribution which may be brought by officers, directors or employees of the
Company (other than Agent) who may be jointly liable with Agent.
14. Liability
Insurance.
(a) For the
duration of Agent’s service as a director and/or officer of the Company, and
thereafter for so long as Agent 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 minimum AM Best rating for the insurance
carriers of such insurance shall be not less than A-VI.
(b) In the
event that any action is instituted by Agent under this Agreement or under any
liability insurance policies maintained by the Company to enforce or interpret
any of the terms hereof or thereof, Agent shall be entitled to be paid all
Expenses incurred by Agent with respect to such action, regardless of whether
Agent is ultimately successful in such action, and shall be entitled to the
advancement of Expenses with respect to such action, unless as a part of such
action a court of competent jurisdiction over such action determines that each
of the material assertions made by Agent as a basis for such action was not made
in good faith or was frivolous.
15. No Imputation. The
knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Company or the Company itself shall not be imputed to Agent for
purposes of determining any rights under this Agreement.
16. Separability. If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (i) the validity, legality
and enforceability of the remaining provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law;
(ii) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the
intent of the parties hereto; and (iii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested
thereby. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Company shall nevertheless indemnify Agent to
the fullest extent provided by the Bylaws, the DGCL or any other applicable
law.
17. Coverage. This
Agreement shall apply with respect to Agent’s service as set forth in Section 1
on behalf of the Company and as a director and/or officer of Raptor
Pharmaceuticals Corp. and its subsidiaries prior to the date of this
Agreement.
18. Governing Law. This
Agreement shall be interpreted and enforced in accordance with the laws of the
State of Delaware (without regard to conflicts of laws principles).
19. Amendment and
Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
the Company and Agent.
20. Identical Counterparts;
Facsimile. This Agreement may be executed in one or more
counterparts, including counterparts transmitted by facsimile or other
electronic communication, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute but one and the same
Agreement. Only one such counterpart need be produced to evidence the
existence of this Agreement. Facsimile signatures, or signatures
delivered by other electronic transmission, shall be as effective as original
signatures.
21. Headings. The
headings of the sections of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to affect the
construction hereof.
22. Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) upon delivery if
delivered by hand to the party to whom such communication was directed, (ii)
when sent by confirmed electronic mail or by facsimile, with verification of
receipt, in either case, if sent during regular business hours; if not, then on
the next business day; or (iii) upon the third business day after the date on
which such communication was mailed if mailed by certified or registered mail,
return receipt requested, with postage prepaid.
(a) All
communications shall be delivered to Agent at the address indicated on the
signature page hereof, or at such other address as Agent shall designate by ten
days’ advance written notice to the Company.
(b) All
communications shall be delivered to the Company at 0 Xxxxxxxxxx Xxxx., Xxxxx
000, Xxxxxx, XX 00000, or such other address as may have been furnished to Agent
by the Company.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year first
above written.
By:
Name:
Its:
Agent
Name:
Print
Name:
Address:
