INDEMNITY AGREEMENT THIS AGREEMENT made as of ______, 20__.
Exhibit
4.13
THIS
AGREEMENT made as of ______, 20__.
BETWEEN:
HELIX BIOPHARMA CORP., having
an address at 000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxx 0, Xxxxxx, XX X0X
0X0
(“the
Corporation” or “Helix”)
AND:
(the
“Indemnitee”)
WHEREAS:
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A.
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The
Indemnitee is a director or officer of the Corporation and also acts, or
may act, from time to time, at the request of the Corporation
as a director or officer, or in a similar capacity, of one or more other
entities;
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B.
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The
Corporation has agreed to indemnify the Indemnitee from and against all
costs, charges and expenses, including an amount paid to settle an action
or satisfy a judgment, which is reasonably incurred by the Indemnitee in
respect of any civil, criminal, administrative, investigative or other
proceeding in which the Indemnitee is or may become involved because of
the Indemnitee’s association referred to in Recital A above with the
Corporation or other entity, on the terms and conditions set out
herein;
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C.
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This
Indemnity Agreement made as of ______, 20__ is being entered into to
replace and supercede all previous agreements, if any, between
Helix and the Indemnitee relating to the subject matter
hereof;
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NOW
THEREFORE, in consideration of the premises, the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
adequacy whereof are hereby acknowledged, the parties do hereby agree as
follows:
ARTICLE
1 INDEMNIFICATION
1.1 Indemnification
Subject
to the terms and conditions of this Agreement, the Corporation shall indemnify
the Indemnitee, to the full extent permitted by law, including but not limited
to the full extent permitted under the Canada Business Corporations
Act, as the same exists on the date hereof or may hereafter be amended
(but, in the case of such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than the law
permitted prior to such amendment), against all costs, charges and expenses,
including an amount paid to settle an action or satisfy a judgment, reasonably
incurred by the Indemnitee in respect of any civil, criminal, administrative,
investigative or other proceeding in which the Indemnitee is or may hereafter
become involved because the Indemnitee is or was a director or officer of the
Corporation or acts or acted at the request of the Corporation as a director or
officer, or in a similar capacity, of another entity.
1.2 Advance of
costs
The
Corporation shall advance moneys to the Indemnitee for the costs, charges and
expenses of a proceeding referred to in section 1.1. The
Indemnitee shall repay the moneys if the Indemnitee does not fulfil the
conditions of section 1.3.
1.3 Limitation
The
Corporation may not indemnify the Indemnitee under section 1.1 unless the
Indemnitee
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(a)
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acted
honestly and in good faith with a view to the best interests of the
Corporation, or, as the case may be, to the best interests of the other
entity for which the Indemnitee acted as director or officer or in a
similar capacity at the Corporation's request;
and
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(b)
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in
the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, the Indemnitee had reasonable grounds for
believing that the Indemnitee's conduct was
lawful.
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1.4 Indemnification in
derivative actions
The
Corporation shall, with the approval of a court (as defined in the Canada Business Corporations
Act as the same may be amended from time to time or any successor
legislation), indemnify the Indemnitee, or advance moneys under section 1.2, in
respect of an action by or on behalf of the Corporation or other entity to
procure a judgment in its favour, to which the Indemnitee is made a party
because of the Indemnitee’s association with the Corporation or other entity as
described in section 1.1 against all costs, charges and expenses including an
amount paid to settle an action or satisfy a judgment, if the Indemnity fulfils
the conditions set out in section 1.3.
1.5 Giving of
Notice
The
Indemnitee shall give to the Corporation notice in writing as soon as
practicable of any claim made against the Indemnitee for which indemnity will or
could be sought under this Agreement (the “Indemnification Notice”). Notice to
the Corporation shall be given at its principal office and shall be directed to
the Corporate Secretary (or such other address as the Corporation shall
designate in writing to the Indemnitee).
1.6 Corporation’s obligations
upon receipt of Notice
Upon
receipt of the an Indemnification Notice, the Corporation will
diligently proceed to obtain such approval necessary, including without
limitation, court approval in the case of a request for indemnification pursuant
to section 1.4, and will take all other steps necessary to provide the
requested indemnification as soon as practicable following receipt of the
Indemnification Notice. The Indemnitee shall provide the Corporation
with all such further information, documents, and co-operation as the
Corporation may reasonably require in connection with the requested
indemnification.
1.7 Taxes
If the
Indemnitee is required to include in the Indemnitee’s income, or in the income
of the estate of the Indemnitee, any payment made under this Agreement for the
purpose of determining income tax payable by the Indemnitee or the estate, the
Corporation shall pay an amount by way of indemnity that will fully indemnify
the Indemnitee or estate for the amount of all costs, charges and expenses
described in sections 1.1 and
1.4 and all income taxes payable as a result of the receipt of the
indemnity payment.
ARTICLE
2 ENFORCEMENT,
SUBROGATION AND INVALIDATION
2.1 Failure to pay
claim
If a
claim under this Agreement is not paid by the Corporation, or on its behalf,
within thirty days or as soon as practicable, whichever is later, after an
Indemnification Notice has been received by the Corporation, the Indemnitee may
at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and if successful in whole or in part, the Indemnitee shall
also be entitled to be paid the expenses of prosecuting such claim.
2.2 Subrogation
In the
event of payment under this Agreement, the Corporation shall be subrogated to
the extent of such payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the Corporation effectively to bring suit to enforce such
rights.
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2.3 No
Invalidation
Any
failure by the Indemnitee in his or her capacity as a director or officer of the
Corporation or acting, at the request of the Corporation, as a director or
officer or person acting in a similar capacity of another entity, or any failure
of the Corporation or such other entity to comply with the provisions of the
constating documents or by-laws or rules of the Corporation or such other entity
or of the statute pursuant to which the Corporation or such other entity was
incorporated or organized, will not invalidate any indemnity to which the
Indemnittee is entitled under this Agreement.
ARTICLE
3 REPRESENTATIONS
AND WARRANTIES
3.1 Corporation’s
Representations and Warranties
The
Corporation represents and warrants to the Indemnitee, and acknowledges that the
Indemnitee is relying on such representations and warranties, that:
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(a)
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The
Corporation has the requisite corporate power and authority to enter into
this Agreement and has taken all necessary steps to validly approve the
execution and delivery of this Agreement;
and
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(b)
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this
Agreement has been duly executed and delivered by the Corporation and is a
valid and binding obligation of the
Corporation.
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3.2 Representation and Warranty
of the Indemnitee re: Legal Advice
The
Indemnitee hereby represents and warrants to the Corporation and acknowledges
and agrees that the Indemnitee has had the opportunity to seek and was not
prevented nor discouraged by the Corporation from seeking independent legal
advice prior to the execution and delivery of this Agreement and that, in the
event that the Indemnitee did not avail himself or herself of that opportunity
prior to signing this Agreement, the Indemnitee did so voluntarily without any
undue pressure by the Corporation or otherwise and agrees that the
Indemnitee’s failure to obtain independent legal advice shall not be
used by the Indemnitee as a defence to the enforcement of the terms and
conditions of this Agreement.
ARTICLE
4 MISCELLANEOUS
4.1 Enurement. This
Agreement is binding upon and shall enure to the benefit of the parties, and
their heirs, administrators, successors and permitted assigns.
4.2 Assignment. The
Indemnitee may not assign this Agreement or any right herein without the prior
written consent of the Corporation. The Corporation may assign its
rights and obligations under this Agreement without the consent of the
Indemnitee, provided that without such consent, the Corporation shall continue
to remain directly liable to the Indemnitee for the performance of all of the
Corporation’s obligations hereunder.
4.3 Number and
Gender. Wherever a singular or masculine expression is used in
this Agreement, that expression is deemed to include the plural, the feminine or
the body corporate where required by the context.
4.4 Severability. If
any provision of this Agreement is or becomes unenforceable or invalid for any
reason whatever, such unenforceability or invalidity will not affect the
enforceability or validity of remaining provisions of this Agreement and such
provision will be severable from the remainder of this Agreement.
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4.5 Further
Assurances. Each party agrees to take all such actions
and execute all such documents within its power as may be necessary or desirable
to carry out or implement and give full effect to the provisions and intent of
this Agreement.
4.6 Headings. The
headings in this Agreement are for convenience of reference only and do not
affect the interpretation of this Agreement.
4.7 Governing
Law. This Agreement shall be construed in accordance with the
laws of the Province of Ontario and the parties hereto attorn to the exclusive
jurisdiction of the provincial and federal courts of Ontario.
4.8 Entire Agreement. This Agreement
constitutes the entire agreement between the parties hereto and supersedes all
prior agreements and understandings, oral or written, by and between any of the
parties hereto with respect to the subject matter hereof.
4.9 Survival. This
Agreement will survive the resignation, removal, or other termination of the
Indemnitee’s appointment as a director or officer of the Corporation or, subject
to section 4.14, as a director or officer, or in a similar capacity, of another
entity acting at the request of the Corporation.
4.10 Waivers. No waiver
of, no consent with respect to, and no approval required under any provision of
this Agreement will be effective unless in writing executed by the party against
whom such waiver, consent or approval is sought to be enforced, and then any
such waiver, consent or approval will be effective only in the specific instance
and for the specific purpose given.
4.11 Facsimile, Counterparts and
Electronic Execution. This Agreement may be executed by facsimile and in
one or more counterparts, each of which when taken together will constitute one
and the same instrument and notwithstanding their date of execution shall be
deemed to be executed as of the date first set out in this
Agreement. Delivery of an executed signature page to this Agreement
by any party by electronic transmission will be as effective as delivery of a
manually executed copy of this Agreement by such party.
4.12 All D&O positions
included. This Agreement and the indemnities provided for
herein shall extend to all director and officer and similar positions which the
Indemnitee held prior to the date hereof, now holds, or may hereafter hold, in
the Corporation or in another entity at the request of the
Corporation.
4.13 Other
Rights. This agreement shall not operate to abridge or
exclude any other rights to which the Indemnitee may be entitled by operation of
law under any statute, by-laws of the Corporation, agreement, vote of
shareholders of the Corporation, vote of disinterested directors of the
Corporation or otherwise.
4.14 Indemnity
Ceases. In
the case of the Indemnitee now or hereafter acting as a director or officer or
in a similar capacity of another entity at the request of the Corporation, the
indemnity contained in this Agreement shall not extend to any costs, charges or
expenses, including an amount paid to settle an action or satisfy a judgment, in
respect of any civil, criminal, administrative, investigative or other
proceeding which is based on or arises out of any act or omission occurring
after the date the Indemnitee has ceased to act in such capacity at the request
of the Corporation.
IN
WITNESS WHEREOF the parties have executed and delivered this Agreement as of the
___ day of ______, 20__.
| HELIX BIOPHARMA CORP. | INDEMNITEE |
| Per: _________________________ | ___________________________ |
| Authorized Signatory | |
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