INDEMNIFICATION AGREEMENT
EXHIBIT
10.13
Indemnification
Agreement (this “Agreement”), dated as
of December 1, 2008 (the “Effective Date”), by
and among SignPath Pharma Inc., a Delaware corporation (the “Company”) and Xxxxxx
Associates LP (the “Agent”).
WHEREAS,
in connection with the closing of the offering contemplated by the Confidential
Private Placement Memorandum dated as of May 28, 2008 (the “Memorandum”);
WHEREAS,
the Company and the Agent have entered into a Placement Agency Agreement, dated
as of May 28, 2008, in connection with the offer and sale of securities (the
“Offering”); and
WHEREAS,
in accordance with the Memorandum, subscribers in the Offering may exchange
certain promissory notes (the “Notes”), including
any accrued and unpaid interest due thereon, for Units of the Company’s
securities, as defined in the Memorandum.
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. Indemnification. The
Agent hereby agrees to indemnify the Company, any controlling person of the
Company and each of its directors, officers, employees, agents, owners,
affiliates, attorneys, successors and assigns (each, an “Indemnified Party”)
and hold each of them harmless from and against any and all losses, claims,
damages, expenses, liabilities, joint or several (collectively, “Liabilities”) to
which the Indemnified Parties may become liable, directly or indirectly, arising
out of, or relating to any claims from the issuance of Units of the Company to
Xxxxxxx X. Xxxxx Xxx, Xxxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxx Xxxxxx and Xxxxxx
Xxxxxx (the “Investors”) solely to
the extent that such Liabilities arise out of the determination of the number of
Units (as defined in the Memorandum) issued to the Investors in exchange for the
accrued and unpaid interest on the Notes exchanged by the Investors for Units in
the Offering. In no event shall the Agent’s liability to the Indemnified Parties
exceed the aggregate amount of accrued and unpaid interest in dispute arising on
the Notes exchanged by the Investors in the Offering.
2. Defense; Counsel. The
Agent shall have the right to assume exclusive control of the settlement and
defense of any actual or threatened, claim, action, suit or proceeding covered
by this Agreement (an “Action”) and in such
event shall provide counsel for the Indemnified Parties, reasonably satisfactory
to the Indemnified Parties. The Indemnified Parties may engage separate counsel
and participate at its own expense in the defense of any Action. In any event,
the Agent will not, in connection with any Action or separate but substantially
similar or related Actions arising out of the same general allegations or
circumstances, be liable for the expenses of more than one firm of attorneys for
all Indemnified Parties.
3. Settlement. The
Agent, in the defense of any such Action, shall control the defense and all
related settlement negotiations; provided, however, that any settlement be made
with the consent of the Indemnified Parties (which consent shall not be
unreasonably withheld or delayed) or such settlement include the giving by the
plaintiff or claimant of an unconditional release from all liability in favor of
the Indemnified Parties. The Agent shall not be liable for any settlement of any
Action effected by or on behalf of an Indemnified Party without its written
consent.
4. Notice and Cooperation by
Indemnified Parties. The Indemnified Parties shall, as a
condition precedent to their right to be indemnified under this Agreement, give
the Agent notice in writing as soon as practicable of any claim made against the
Indemnified Parties for which indemnification will or could be sought under this
Agreement. Notice to the Agent shall be directed to the individual designated
below. In addition, the Indemnified Parties shall give the Agent such
information and cooperation as it may reasonably require in connection with its
defense of any Action. The failure by the Indemnified Parties to give
notice or provide cooperation as provided herein shall not relieve the Agent of
its obligations hereunder except to the extent that the Agent is prejudiced by
such failure.
5. Time
Limitations. This Agreement shall terminate in all respects at
the earlier of (x) 5:00 p.m. (New York time) on the one year anniversary of the
Effective Date or (y) receipt by the Company or the Agent of a signed
acknowledgement by each of the Investors confirming that the number of Units
which s/he has received represented the actual amount to which s/he was entitled
(in the form attached hereto as Exhibit A) (the first to occur of the foregoing
being the “Expiration Time”). An Indemnified Party may seek indemnification
hereunder only if on or before the Expiration Time, it notifies the Agent in
accordance with the terms of this Agreement in writing of such a claim
specifying the factual basis of such claim in reasonable detail to the extent
then known by the Indemnified Party. After the Expiration Time, no further claim
for indemnification may be made.
6. Entire
Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all other
prior agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof.
7. No
Amendment. This Agreement may not be amended or modified
except (a) by an instrument in writing signed by, or on behalf of, the all of
the parties or (b) by a waiver pursuant to Section 8 below.
8. Waiver. Any
parties to this Agreement may (a) extend the time for the performance of any
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties of the other parties contained herein or in
any document delivered by the other parties pursuant hereto, or (c) waive
compliance with any of the agreements of the other parties or conditions to such
parties’ obligations contained herein. Any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by the parties to be
bound thereby. Any waiver, of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition of this Agreement. The
failure of any party to assert any of its rights hereunder shall not constitute
a waiver of any such rights.
9. Assignment. Neither
the Agent, nor the Company may not assign this Agreement or any portion hereof
without the prior written consent of both parties.
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10. Severability. If any
term or other provision of this Agreement is deemed invalid, illegal or
incapable of being enforced by any law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated by
this Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions
contemplated by this Agreement are consummated as originally contemplated to the
greatest extent possible.
11. Counterparts. This
Agreement may be executed and delivered (including by facsimile transmission) in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original, but
all of which taken together shall constitute one and the same
agreement.
12. Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York applicable to contracts executed in and to be performed in
that State.
13. Notices. Any notice,
demand or request required or permitted to be given under this Agreement shall
be in writing and shall be deemed sufficient (i) when delivered personally or
sent by facsimile; (ii) the next business day if deposited with a
nationally-recognized overnight courier service; or (iii) forty-eight (48) hours
after being deposited in the U.S. mail, as certified or registered mail, with
postage prepaid, and addressed to the party to be notified at such party’s
address as set forth below or as subsequently modified by written
notice.
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If
to the Agent:
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If
to the Company:
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Xxxxxx
Associates L.P.
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SignPath
Pharma Inc.
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45
Broadway, 2” d
Floor
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0000
Xxxxxxxxxx Xxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Xxxxxxxxxx,
XX 00000
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Attention:
Xxxxx Xxxxxx
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Attention:
Xxxxxx XxXxxxx
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first written above.
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XXXXXX
ASSOCIATES, L.P.
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By:
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/s/ Xxxxx
Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title:
President
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SIGNPATH
PHARMA INC
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By:
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/s/ Xxxxxxxx
Xxxxxx
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Name:
Xxxxxxxx Xxxxxx
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Title:
CEO and President
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