FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.1
FORM OF
This
Indemnification Agreement (this “Agreement”), dated as of
__________, is by and between Monopar Therapeutics Inc., a Delaware
corporation (the “Company”), and
_______________________ (“Indemnitee”).
RECITALS
1.
The Company desires
to attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve as officers and directors of the
Company and to indemnify its officers and directors so as to
provide them with the maximum protection permitted by
law.
2.
In order to address
such issues and induce Indemnitee to serve or continue to serve as
an officer or director of the Company, the Company has determined
to enter into this Agreement with Indemnitee.
3.
The indemnification
rights provided to Indemnitee pursuant to this Agreement are in
addition to any rights for indemnification provided to Indemnitee
pursuant to the Company’s certificate of incorporation (as it
may be amended from time to time, the “Certificate
of Incorporation”), the
Company’s bylaws (as they may be amended from time to time,
the “Bylaws”)
and any resolutions adopted pursuant thereto and to any
indemnification rights to which Indemnitee may be entitled under
the General Corporation Law of the State of Delaware (the
“DGCL”).
AGREEMENT
Therefore, the
Company and Indemnitee agree as follows:
1.
Definitions.
a.
A
“Change in
Control” shall mean the occurrence of any one or more
of the following events:
i.
any Person (other
than any Permitted Holder as defined in the Company’s
Certificate of Incorporation) becomes the Beneficial Owner (except
that a Person shall be deemed to be the Beneficial Owner of all
shares that any such Person has the right to acquire pursuant to
any agreement or arrangement or upon exercise of conversion rights,
warrants or options or otherwise, without regard to the sixty (60)
day period referred to in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company, representing
thirty percent (30%) or more of the combined voting power of such
entity’s then outstanding securities;
ii.
during any twelve
(12) month period, a majority of the members of the board of
directors of the Company is replaced by individuals who were not
members of the board of directors of the Company at the beginning
of such twelve (12) month period and whose election by the board of
directors of the Company or nomination for election by the
Company’s shareholders was not approved by a vote of at least
a majority of the directors then still in office who either were
directors at the beginning of such twelve (12) month period or
whose election or nomination for election was previously so
approved;
iii.
the consummation of
a merger or consolidation of the Company with any other entity,
other than a merger or consolidation that would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving or
resulting entity) fifty percent (50%) or more of the combined
voting power of the surviving or resulting entity outstanding
immediately after such merger or consolidation; or
iv.
the consummation of
a sale or disposition of all or substantially all of the assets of
the Company, other than such a sale or disposition that would
result in the voting securities of the Company outstanding
immediately prior thereto representing fifty percent (50%) or more
of the combined voting power of the acquiring entity outstanding
immediately after such a sale or disposition.
For
purposes of this Section 1(a), the following terms shall have the
following meanings:
(2)
“Beneficial
Owner” shall have the meaning ascribed to such term in
Rule13d-3 and Rule 13d-5 of the Exchange Act.
b.
“Bylaws” shall have the
meanings set forth in the Recitals.
c.
“Certificate of
Incorporation” shall have the meaning set forth in the
Recitals.
d.
“Corporate Status”
describes the status of a person who is or was a director, trustee,
general partner, managing member, officer, employee, agent or
fiduciary of the Company or any other Enterprise.
e.
“DGCL” shall have the
meaning set forth in the Recitals.
f.
“Disinterested Director”
means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by
Indemnitee.
g.
“Enterprise” means the
Company and any other corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of
the Company as a director, trustee, general partner, managing
member, officer, employee, agent or fiduciary.
h.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended from time to time, and
the rules, regulations and guidance thereunder, or any successor
act thereto.
i.
“Expenses” include all
reasonable and actually incurred attorneys’ fees, retainers,
court costs, transcript costs, fees and costs of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a
witness in, or otherwise participating in, a Proceeding. Expenses
also include (i) Expenses incurred in connection with any
appeal resulting from any Proceeding, including without limitation
the premium, security for, and other costs relating to any cost
bond, supersede as bond or other appeal bond or their equivalent,
and (ii) for purposes of Section 12(d), Expenses incurred
by Indemnitee in connection with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement or under
any directors’ and officers’ liability insurance
policies maintained by the Company. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.
j.
“Independent Counsel”
means a law firm, or a partner or member of a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent (i) the
Company or Indemnitee in any matter material to either such party
(other than as Independent Counsel with respect to matters
concerning Indemnitee under this Agreement, or other indemnitees
under similar indemnification agreements), or (ii) any other party
to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
k.
“Proceeding” means any
threatened, pending or completed action, suit, arbitration,
mediation, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or proceeding, whether brought in
the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, including any
appeal therefrom and including without limitation any such
Proceeding pending as of the date of this Agreement, in which
Indemnitee was, is or will be involved as a party, a potential
party, a non-party witness or otherwise by reason of (i) the fact
that Indemnitee is or was a director or officer of the Company,
(ii) any action taken by Indemnitee or any action or inaction on
Indemnitee’s part while acting in the capacity of a director
or officer of the Company, or (iii) the fact that he or she is
or was serving at the request of the Company as a director,
trustee, general partner, managing member, officer, employee, agent
or fiduciary of the Company or any other Enterprise, in each case
whether or not serving in such capacity at the time any liability
or Expense is incurred for which indemnification or advancement of
expenses can be provided under this Agreement.
l.
Construction of Certain
Phrases. Reference to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise
taxes assessed on a person with respect to any employee benefit
plan; references to “serving
at the request of the Company” shall include any
service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in
good faith and in a manner he or she reasonably believed to be in
the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner
“not opposed to the best
interests of the Company” as referred to in this
Agreement.
2.
Indemnification in Third-Party
Proceedings. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 2 if Indemnitee is,
or is threatened to be made, a party to or a participant in any
Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this
Section 2, Indemnitee shall be indemnified to the fullest extent
permitted by applicable law against all Expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on his or her behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was
unlawful.
3.
Indemnity in Proceedings by or in the
Right of the Company. The Company shall indemnify Indemnitee
in accordance with the provisions of this Section 3 if Indemnitee
is, or is threatened to be made, a party to or a participant in any
Proceeding by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law
against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with such Proceeding
or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification
for Expenses shall be made under this Section 3 in respect of any
claim, issue or matter as to which Indemnitee shall have been
adjudged by a court of competent jurisdiction to be liable to the
Company, unless and only to the extent that the Delaware Court of
Chancery or any court in which the Proceeding was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for
such expenses as the Delaware Court of Chancery or such other court
shall deem proper.
4.
Indemnification for Expenses of a
Party Who is Wholly or Partly Successful. To the extent that
Indemnitee is a party to or a participant in and is successful (on
the merits or otherwise) in defense of any Proceeding or any claim,
issue or matter therein, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection therewith. For
purposes of this section, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
5.
Indemnification for Expenses of a
Witness. To the extent that Indemnitee is, by reason of his
or her Corporate Status, a witness in any Proceeding to which
Indemnitee is not a party, Indemnitee shall be indemnified to the
extent permitted by applicable law against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection therewith.
6.
Additional Indemnification.
Notwithstanding any limitation in Sections 2, 3 or 4, the Company
shall indemnify Indemnitee to the fullest extent permitted by
applicable law, as such may be amended from time to time, if
Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding (including a Proceeding by or in the
right of the Company to procure a judgment in its favor) against
all Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with the Proceeding or any claim, issue or
matter therein.
7.
Exclusions. Notwithstanding any
provision in this Agreement, the Company shall not be obligated
under this Agreement to make any indemnity in connection with any
Proceeding (or any part of any Proceeding):
a.
for which payment
has actually been made to or on behalf of Indemnitee under any
statute, insurance policy, indemnity provision, vote or otherwise,
except with respect to any excess beyond the amount
paid;
b.
for an accounting
or disgorgement of profits pursuant to Section 16(b) of the
Exchange Act or similar provisions of federal, state or local
statutory law or common law, if Indemnitee is held liable therefor
(including pursuant to any settlement arrangements in connection
therewith);
c.
for any
reimbursement of the Company by Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits
realized by Indemnitee from the sale of securities of the Company,
as required in each case under the Exchange Act (including any such
reimbursements that arise from an accounting restatement of the
Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002,
or the payment to the Company of profits arising from the purchase
and sale by Indemnitee of securities in violation of Section 306 of
the Xxxxxxxx-Xxxxx Act of 2002), if Indemnitee is held liable
therefor (including pursuant to any settlement arrangements in
connection therewith);
d.
initiated by
Indemnitee, including any Proceeding (or any part of any
Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees, agents or other indemnitees, unless
(i) the Company’s board of directors authorized the
Proceeding (or the relevant part of the Proceeding) prior to its
initiation, (ii) the Company provides the indemnification, in its
sole discretion, pursuant to the powers vested in the Company under
applicable law, (iii) otherwise authorized in Section 12, or (iv)
otherwise required by applicable law; or
e.
if prohibited by
law.
8.
Advances of Expenses. The
Company shall advance the Expenses incurred by Indemnitee in
connection with any Proceeding prior to its final disposition, and
such advancement shall be made as soon as reasonably practicable,
but in any event no later than 90 days, after the receipt by the
Company of a written statement or statements requesting such
advances from time to time (which shall include invoices received
by Indemnitee in connection with such Expenses but, in the case of
invoices in connection with legal services, any references to legal
work performed or to expenditure made that would cause Indemnitee
to waive any privilege accorded by applicable law shall not be
included with the invoice). Indemnitee hereby undertakes to repay
any advance to the extent that it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company, and no
other form of undertaking shall be required other than the
execution of this Agreement. Such repayment obligation will be
unsecured and will not bear interest. This Section 8 shall not
apply to the extent advancement is prohibited by law and shall not
apply to any Proceeding (or any part of any Proceeding) for which
indemnity is not permitted under this Agreement, but shall apply to
any Proceeding (or any part of any Proceeding) referenced in
Section 7(b) or 7(c) prior to a determination that Indemnitee is
not entitled to be indemnified by the Company.
9.
Procedures for Notification and
Defense of Claim.
a.
Indemnitee shall
notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of
Expenses as soon as reasonably practicable following the receipt by
Indemnitee of notice thereof. The written notification to the
Company shall include, in reasonable detail, a description of the
nature of the Proceeding and the facts underlying the Proceeding.
The failure by Indemnitee to notify the Company will not relieve
the Company from any liability which it may have to Indemnitee
hereunder or otherwise than under this Agreement, and any delay in
so notifying the Company shall not constitute a waiver by
Indemnitee of any rights, except to the extent that such failure or
delay materially prejudices the Company.
b.
If, at the time of
the receipt of a notice of a Proceeding pursuant to the terms
hereof, the Company has directors’ and officers’
liability insurance in effect that may be applicable to the
Proceeding, the Company shall give prompt notice of the
commencement of the Proceeding to the insurers in accordance with
the procedures set forth in the applicable policies. The Company
shall thereafter take all commercially-reasonable 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.
c.
If the Company is
obligated to make any indemnity in connection with a Proceeding,
the Company may assume the defense of such Proceeding with counsel
approved by Indemnitee, which approval shall not be unreasonably
withheld, conditioned or delayed, upon the delivery to Indemnitee
of written notice of the Company’s election to do so. 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 for any fees or expenses of counsel
subsequently incurred by Indemnitee with respect to the same
Proceeding. Notwithstanding the Company’s assumption of the
defense of any such Proceeding, the Company shall be obligated to
pay the fees and expenses of Indemnitee’s separate counsel to
the extent (i) the employment of separate counsel by Indemnitee is
authorized by the Company, (ii) counsel for the Company or
Indemnitee 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, (iii) the Company is not financially or legally able
to perform its indemnification obligations, or (iv) the Company
shall not have retained, or shall not continue to retain, counsel
to defend such Proceeding. Regardless of any provision in this
Agreement, Indemnitee shall have the right to employ counsel in any
Proceeding at Indemnitee’s personal expense. The Company
shall not be entitled, without the consent of Indemnitee, to assume
the defense of any claim brought by or in the right of the
Company.
d.
Indemnitee shall
give the Company such information and cooperation in connection
with the Proceeding as may be reasonably appropriate.
e.
The Company shall
not be liable to indemnify Indemnitee for any settlement of any
Proceeding (or any part thereof) without the Company’s prior
written consent, which shall not be unreasonably withheld,
conditioned or delayed.
f.
The Company shall
not settle any Proceeding (or any part thereof) in a manner that
imposes any penalty or liability on Indemnitee without
Indemnitee’s prior written consent, which shall not be
unreasonably withheld, conditioned or delayed.
10.
Procedures upon Application for
Indemnification.
a.
To obtain
indemnification, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and as is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification following the final
disposition of the Proceeding. The Company shall, as soon as
reasonably practicable after receipt of such a request for
indemnification, advise the board of directors that Indemnitee has
requested indemnification. Any delay in providing the request will
not relieve the Company from its obligations under this Agreement,
except to the extent such failure is prejudicial.
b.
Upon written
request by Indemnitee for indemnification pursuant to Section
10(a), a determination with respect to Indemnitee’s
entitlement thereto shall be made in the specific case (i) if a
Change in Control shall have occurred, by Independent Counsel in a
written opinion to the Company’s board of directors, a copy
of which shall be delivered to Indemnitee or (ii) if a Change in
Control shall not have occurred, (A) by a majority vote of the
Disinterested Directors, even though less than a quorum of the
Company’s board of directors, (B) by a committee of
Disinterested Directors designated by a majority vote of the
Disinterested Directors, even though less than a quorum of the
Company’s board of directors, (C) if there are no such
Disinterested Directors or, if such Disinterested Directors so
direct, by Independent Counsel in a written opinion to the
Company’s board of directors, a copy of which shall be
delivered to Indemnitee or (D) if so directed by the
Company’s board of directors, by the stockholders of the
Company. If it is determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within thirty
days after such determination. Indemnitee shall cooperate with the
person, persons or entity making the 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) actually and reasonably incurred by
Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company, to the
extent permitted by applicable law.
c.
In the event the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 10(b), the Independent
Counsel shall be selected as provided in this Section 10(c). If a
Change in Control shall not have occurred, the Independent Counsel
shall be selected by the Company’s board of directors, and
the Company shall give written notice to Indemnitee advising him or
her 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 Company’s board of
directors, in which event the preceding sentence shall apply), 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
ten 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; provided, however, that 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 1 of this
Agreement, and the objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel.
If such written objection is so made and substantiated, the
Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit. If, within 20 days
after the later of (i) submission by Indemnitee of a written
request for indemnification pursuant to Section 10(a) hereof and
(ii) the final disposition of the Proceeding, the parties have not
agreed upon an Independent Counsel, either the Company or
Indemnitee may petition the Delaware Court of Chancery for
resolution of any objection which shall have been made by the
Company or Indemnitee to the other’s selection of Independent
Counsel and for the appointment as Independent Counsel of a person
selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are
so resolved or the person so appointed shall act as Independent
Counsel under Section 10(b) hereof. Upon the due commencement of
any judicial proceeding pursuant to Section 12(a) of this
Agreement, the Independent Counsel shall be discharged and relieved
of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then
prevailing).
d.
The Company agrees
to pay the reasonable fees and expenses of any Independent
Counsel.
11.
Presumptions and Effects of Certain
Proceedings.
a.
In making a
determination with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination
shall, to the fullest extent not prohibited by law, presume that
Indemnitee is entitled to indemnification under this Agreement, and
the Company shall, to the fullest extent not prohibited by law,
have the burden of proof to overcome that presumption by clear and
convincing evidence.
b.
The termination of
any Proceeding 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 (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
or she reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that
his or her conduct was unlawful.
c.
For purposes of any
determination of good faith, Indemnitee shall be deemed to have
acted in good faith to the extent Indemnitee relied in good faith
on (i) the records or books of account of the Enterprise, including
financial statements, (ii) information supplied to Indemnitee by
the officers or employees of the Enterprise in the course of their
duties, (iii) the advice of legal counsel for the Enterprise
or its board of directors or counsel selected by any committee of
the board of directors or (iv) information or records given or
reports made to the Enterprise by an independent certified public
accountant, an appraiser, investment banker or other expert
selected with reasonable care by the Enterprise or its board of
directors or any committee of the board of directors. The
provisions of this Section 11(c) shall not be deemed to be
exclusive or to limit in any way the other circumstances in which
Indemnitee may be deemed to have met any applicable standard of
conduct.
d.
Neither the
knowledge, actions nor failure to act of any other director,
officer, agent or employee of the Enterprise shall be imputed to
Indemnitee for purposes of determining the right to indemnification
under this Agreement.
12.
Remedies of
Indemnitee.
a.
Subject to Section
12(e), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses
is not timely made pursuant to Section 8 or 12(d) of this
Agreement, (iii) no determination of entitlement to indemnification
shall have been made pursuant to Section 10 of this Agreement
within 90 days after the later of the receipt by the Company of the
request for indemnification or the final disposition of the
Proceeding, (iv) payment of indemnification pursuant to this
Agreement is not made (A) within thirty days after a determination
has been made that Indemnitee is entitled to indemnification or (B)
with respect to indemnification pursuant to Sections 4, 5 and 12(d)
of this Agreement, within thirty days after receipt by the Company
of a written request therefor, or (v) the Company or any other
person or entity takes or threatens to take any action to declare
this Agreement void or unenforceable, or institutes any litigation
or other action or proceeding designed to deny, or to recover from,
Indemnitee the benefits provided or intended to be provided to
Indemnitee hereunder, Indemnitee may seek an adjudication by the
Delaware Court of Chancery of his or her entitlement to such
indemnification or advancement of Expenses. Indemnitee shall
commence such proceeding seeking an adjudication within 180 days
after the date on which Indemnitee first has the right to commence
such proceeding pursuant to this Section 12(a).
b.
Neither (i) the
failure of the Company, its board of directors, any committee or
subgroup of the board of directors, Independent Counsel or
stockholders to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has
met the applicable standard of conduct, nor (ii) an actual
determination by the Company, its board of directors, any committee
or subgroup of the board of directors, Independent Counsel or
stockholders that Indemnitee has not met the applicable standard of
conduct, shall create a presumption that Indemnitee has or has not
met the applicable standard of conduct. In the event that a
determination shall have been made pursuant to Section 10 of this
Agreement that Indemnitee is not entitled to indemnification, any
judicial proceeding commenced pursuant to this Section 12 shall be
conducted in all respects as a de novo trial on the merits, and
Indemnitee shall not be prejudiced by reason of that adverse
determination. In any judicial proceeding commenced pursuant to
this Section 12, the Company shall, to the fullest extent not
prohibited by law, have the burden of proving Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case
may be, by clear and convincing evidence.
c.
To the fullest
extent not prohibited by law, the Company shall be precluded from
asserting in any judicial proceeding commenced pursuant to this
Section 12 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. If a determination shall have been made pursuant to
Section 10 of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination
in any judicial proceeding commenced pursuant to this Section 12,
absent (i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make Indemnitee’s
statements not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such
indemnification under applicable law.
d.
To the extent not
prohibited by law, the Company shall indemnify Indemnitee against
all Expenses that are incurred by Indemnitee in connection with any
action for indemnification or advancement of Expenses from the
Company under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the
Company to the extent Indemnitee is successful in such action, and,
if requested by Indemnitee, shall (as soon as reasonably
practicable, but in any event no later than 90 days, after receipt
by the Company of a written request therefor) advance such Expenses
to Indemnitee, subject to the provisions of Section 8.
e.
Notwithstanding
anything in this Agreement to the contrary, no determination as to
entitlement to indemnification shall be required to be made prior
to the final disposition of the Proceeding.
13.
Contribution. To the fullest
extent permissible under applicable law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee, the
Company, in lieu of indemnifying Indemnitee, shall contribute to
the amounts incurred by Indemnitee, whether for Expenses,
judgments, fines or amounts paid or to be paid in settlement, in
connection with any claim relating to an indemnifiable event under
this Agreement, in such proportion as is deemed fair and reasonable
in light of all of the circumstances of such Proceeding in order to
reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the events and transactions giving rise
to such Proceeding; and (ii) the relative fault of Indemnitee and
the Company (and its other directors, officers, employees and
agents) in connection with such events and
transactions.
14.
Non-exclusivity. The rights of
indemnification and to receive advancement of Expenses as provided
by this Agreement shall not be deemed exclusive of any other rights
to which Indemnitee may at any time be entitled under applicable
law, the Certificate of Incorporation or Bylaws, any agreement, a
vote of stockholders or a resolution of directors, or otherwise. To
the extent that a change in Delaware law, whether by statute or
judicial decision, permits greater indemnification or advancement
of Expenses than would be afforded currently under the Certificate
of Incorporation and Bylaws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change, subject to the
restrictions expressly set forth herein or therein. Except as
expressly set forth herein, no right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. Except as expressly set forth
herein, the assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other right or remedy.
15.
Primary Responsibility. The
Company acknowledges that Indemnitee may have certain rights to
indemnification and/or advancement of expenses provided by other
sources (collectively, the “Secondary Indemnitors”).
The Company agrees that Indemnitee is not obligated to enforce its
rights against such Secondary Indemnitors prior to obtaining
indemnification or advancement of expenses under this
Agreement.
16.
No Duplication of Payments. The
Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder (or for which
advancement is provided hereunder) if and to the extent that
Indemnitee has otherwise actually received payment for such amounts
under any insurance policy, contract, agreement or
otherwise.
17.
Subrogation. In the event of
any 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 papers required and take all
action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to
enforce such rights.
18.
Duration. This Agreement shall
continue in effect until the later of (a) ten years after the date
that Indemnitee shall have ceased to serve as a director or an
officer of the Company or as a director, trustee, general partner,
managing member, officer, employee, agent or fiduciary of any other
Enterprise, as applicable, (b) for as long as Indemnitee may be
subject to any Proceeding, even after Indemnitee has ceased to
serve as a director or officer of the Company or as a director,
trustee, general partner, managing member, officer, employee, agent
or fiduciary of any other Enterprise, as applicable.
19.
Successors. This Agreement shall be
binding upon and inure to the benefit of the Company and its
successors and assigns, and Indemnitee and Indemnitee’s
estate, heirs, legal representatives and
assigns.
20.
Severability. Nothing in this
Agreement is intended to require or shall be construed as requiring
the Company to do or fail to do any act in violation of applicable
law. The Company’s inability, pursuant to court order or
other applicable law, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. 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.
21.
Enforcement. The Company
expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order
to induce Indemnitee to serve or continue to serve as a director or
officer of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director
or officer of the Company.
22.
Entire Agreement. This
Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied,
between the parties hereto with respect to the subject matter
hereof; provided, however, that this Agreement is a supplement to
and in furtherance of the Certificate of Incorporation, Bylaws and
applicable law.
23.
Modification and Waiver. No
supplement, modification or amendment to this Agreement shall be
binding unless executed in writing by the parties hereto. No
amendment, alteration or repeal of this Agreement shall adversely
affect any right of Indemnitee under this Agreement in respect of
any action taken or omitted by such Indemnitee in his or her
Corporate Status prior to such amendment, alteration or repeal. No
waiver of any of the provisions of this Agreement shall constitute
or be deemed a waiver of any other provision of this Agreement nor
shall any waiver constitute a continuing waiver.
24.
Notices. All notices and other
communications required or permitted hereunder shall be in writing
and shall be mailed by registered or certified mail, postage
prepaid, sent by electronic mail or otherwise delivered by hand,
messenger or courier service addressed:
a.
if to Indemnitee, to Indemnitee’s address, or electronic mail
address as shown on the signature page of this Agreement or in the
Company’s records, as may be updated in accordance with the
provisions hereof; or
b.
if to the Company, to the attention of Xxxxxxxx X. Xxxxxxxx, Chief
Executive Officer at Monopar Therapeutics Inc., 0000 Xxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxx, XX 00000.
Each such notice or other communication
shall for all purposes of this Agreement be treated as effective or
having been given (i) if delivered by hand, messenger or
courier service, when delivered (or if
sent via a
nationally-recognized overnight courier service, freight prepaid,
specifying next-business-day delivery, one business day
after deposit with the courier), or (ii) if
sent via mail,
at the earlier of its receipt or five days after the same has been
deposited in a regularly-maintained receptacle for the deposit of
the United States mail, addressed and mailed as aforesaid, or
(iii) if sent via electronic
mail, upon confirmation of delivery when directed to the relevant
electronic mail address, if sent during normal business hours of
the recipient, or if not sent during normal business hours of the
recipient, then on the recipient’s next business
day.
25.
Governing Law and Consent to
Jurisdiction. This Agreement shall be
governed by and construed in accordance with the domestic
substantive laws of the State of Delaware without giving effect to
any choice or conflict of laws provision or rule that would cause
the application of the domestic substantive laws of any other
jurisdiction. Each party hereto (a) hereby irrevocably
submits to the exclusive jurisdiction of the state and federal
courts sitting in the State of Delaware for the purpose of any
action, claim, cause of action or suit (in contract, tort or
otherwise), inquiry, proceeding or investigation arising out of or
based upon this Agreement or relating to the subject matter hereof,
(b) hereby waives to the extent not prohibited by applicable law,
and agrees not to assert, and agrees not to allow any of its
subsidiaries or agents to assert, by way of motion, as a defense or
otherwise, in any such action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that any
such proceeding brought in one of the above-named courts is
improper or that this Agreement or the subject matter hereof or
thereof may not be enforced in or by such court and (c) hereby
agrees neither to commence or maintain any action, claim, cause of
action or suit (in contract, tort or otherwise), inquiry,
proceeding or investigation arising out of or based upon this
Agreement, or relating to the subject matter hereof or thereof,
other than before one of the above-named courts, nor to make any
motion or take any other action seeking or intending to cause the
transfer or removal of any such action, claim, cause of action or
suit (in contract, tort or otherwise), inquiry, proceeding or
investigation to any court other than one of the above-named
courts, whether on the grounds of inconvenient forum or otherwise.
Each party hereto consents to service of process in any such
proceeding in any manner permitted by Delaware law, and agrees that
service of process by registered or certified mail, return receipt
requested, at its address specified pursuant to Section 13(c)
hereof is reasonably calculated to give actual notice.
26.
WAIVER OF JURY TRIAL. TO THE
EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED,
EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT
ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION,
CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE),
INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT
IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION
26 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING
AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 26 WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
27.
Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall
for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. This
Agreement may also be executed and delivered by facsimile or
portable document format (.pdf) and in counterparts, each of which
shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement.
28.
Descriptive Headings.
The
descriptive headings of this Agreement are for convenience of
reference only, are not to be considered a part hereof and shall
not be construed to define or limit any of the terms or provisions
hereof.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Parties have executed this Agreement on the
date first written above.
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Monopar
Therapeutics Inc.
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By:
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Name:
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Title:
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Indemnitee |
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By:
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[Insert Indemnitee
Name]
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[Signature
Page to Indemnification Agreement]
