INDEMNIFICATION AGREEMENT
Exhibit 10.8
THIS
INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered
into as of __________ by and between ENDRA Life
Sciences Inc., a Delaware corporation (the
“Company”), and
________________ (“Indemnitee”).
WITNESSETH
THAT:
WHEREAS, highly
competent persons have become more reluctant to serve corporations
as directors or officers or in other capacities unless they are
provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the corporation;
WHEREAS, although
the furnishing of liability insurance to protect persons serving
the Company and its subsidiaries from certain liabilities has been
a customary and widespread practice among United States-based
corporations and other business enterprises, the Company believes
that, given current market conditions and trends, such insurance
may be available to it in the future only at higher premiums and
with more exclusions. At the same time, directors, officers, and
other persons in service to corporations or business enterprises
are being increasingly subjected to expensive and time-consuming
litigation relating to, among other things, matters that
traditionally would have been brought only against the Company or
business enterprise itself. The Bylaws and Certificate of
Incorporation of the Company require indemnification of the
officers and directors of the Company. Indemnitee may also be
entitled to indemnification pursuant to the General Corporation Law
of the State of Delaware (“DGCL”). The Bylaws and Certificate
of Incorporation and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and
thereby contemplate that contracts may be entered into between the
Company and members of the board of directors, officers and other
persons with respect to indemnification;
WHEREAS, the
uncertainties relating to liability insurance and to
indemnification have increased the difficulty of attracting and
retaining such persons;
WHEREAS, the Board
has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure
such persons that there will be increased certainty of such
protection in the future;
WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of,
such persons to the fullest extent permitted by applicable law so
that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified;
WHEREAS, this
Agreement is a supplement to and in furtherance of the Bylaws and
Certificate of Incorporation of the Company and any resolutions
adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder; and
WHEREAS, Indemnitee
does not regard the protection available under the Company's Bylaws
and Certificate of Incorporation and insurance as adequate in the
present circumstances, and may not be willing to serve as an
officer or director without adequate protection, and the Company
desires Indemnitee to serve in such capacity. Indemnitee is willing
to serve, continue to serve and to take on additional service for
or on behalf of the Company on the condition that he be so
indemnified; and
WHEREAS, Indemnitee
has certain rights to indemnification and/or insurance provided by
other entities and/or organizations which Indemnitee and such other
entities and/or organizations intend to be secondary to the primary
obligation of the Company to indemnify Indemnitee as provided
herein, with the Company’s acknowledgement and agreement to
the foregoing being a material condition to Indemnitee’s
willingness to serve on the Board.
NOW,
THEREFORE, in consideration of Indemnitee’s agreement to
serve as an officer or a director from and after the date hereof,
the parties hereto agree as follows:
1.
Indemnity of
Indemnitee. The Company hereby
agrees to hold harmless and indemnify Indemnitee to the fullest
extent permitted by law, as such may be amended from time to time.
In furtherance of the foregoing indemnification, and without
limiting the generality thereof:
(a)
Proceedings Other Than
Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of
indemnification provided in this Section
1(a)
if, by reason of his Corporate Status
(as hereinafter defined), the Indemnitee is, or is threatened to be
made, a party to or participant in any Proceeding (as hereinafter
defined) other than a Proceeding by or in the right of the Company.
Pursuant to this Section
1(a),
Indemnitee shall be indemnified against all Expenses (as
hereinafter defined), judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him, or on his
behalf, in connection with such Proceeding or any claim, issue or
matter therein, if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, and with respect to any
criminal Proceeding, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful.
(b)
Proceedings by or in
the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification
provided in this Section
1(b)
if, by reason of his Corporate Status,
the Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding brought by or in the right of the
Company. Pursuant to this Section
1(b),
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by the Indemnitee, or on the Indemnitee’s
behalf, in connection with such Proceeding if the Indemnitee acted
in good faith and in a manner the Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company;
provided, however, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company
unless and to the extent that the Court of Chancery of the State of
Delaware shall determine that such indemnification may be
made.
(c) Indemnification
for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee
is, by reason of his Corporate Status, a party to or is otherwise
involved in and is successful, on the merits or otherwise, in any
Proceeding, or in defense of any claim, issue or matter therein, in
whole or in part, he shall be indemnified to the maximum extent
permitted by law, as such may be amended from time to time, against
all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section and without
limitation, 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.
2.
Additional
Indemnity. In addition to, and
without regard to any limitations on, the indemnification provided
for in Section
1
of this Agreement, to the maximum
extent permitted by law, the Company shall and hereby does
indemnify and hold harmless Indemnitee against all Expenses,
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf if, by reason of
his Corporate Status, he is, or is threatened to be made, a party
to or participant in any Proceeding (including a Proceeding by or
in the right of the Company), including, without limitation, all
liability arising out of the negligence or active or passive
wrongdoing of Indemnitee. The only limitation that shall exist upon
the Company’s obligations pursuant to this Agreement shall be
that the Company shall not be obligated to make any payment to
Indemnitee that is finally determined (under the procedures, and
subject to the presumptions, set forth in Sections
6
and 7 hereof) to be unlawful.
2
3. Contribution.
(a) Whether
or not the indemnification provided in Sections
1
and 2 hereof is available, in respect of any threatened,
pending or completed action, suit or proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), the Company shall pay, in the
first instance, the entire amount of any judgment or settlement of
such action, suit or proceeding without requiring Indemnitee to
contribute to such payment and the Company hereby waives and
relinquishes any right of contribution it may have against
Indemnitee. The Company shall not enter into any settlement of any
action, suit or proceeding in which the Company is jointly liable
with Indemnitee (or would be if joined in such action, suit or
proceeding) unless such settlement provides for a full and final
release of all claims asserted against
Indemnitee.
(b) Without
diminishing or impairing the obligations of the Company set forth
in the preceding subparagraph, if, for any reason, Indemnitee shall
elect or be required to pay all or any portion of any judgment or
settlement in any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such action, suit or proceeding), the
Company shall contribute to the amount of Expenses, judgments,
fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company and all officers,
directors or employees of the Company, other than Indemnitee, who
are jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand, from the transaction from which such action, suit
or proceeding arose; provided, however, that the proportion
determined on the basis of relative benefit may, to the extent
necessary to conform to law, be further adjusted by reference to
the relative fault of the Company and all officers, directors or
employees of the Company other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such action, suit
or proceeding), on the one hand, and Indemnitee, on the other hand,
in connection with the events that resulted in such expenses,
judgments, fines or settlement amounts, as well as any other
equitable considerations which the Law may require to be
considered. The relative fault of the Company and all officers,
directors or employees of the Company, other than Indemnitee, who
are jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand, shall be determined by reference to, among other
things, the degree to which their actions were motivated by intent
to gain personal profit or advantage, the degree to which their
liability is primary or secondary and the degree to which their
conduct is active or passive.
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee
harmless from any claims of contribution which may be brought by
officers, directors or employees of the Company, other than
Indemnitee, who may be jointly liable with Indemnitee.
(d) To
the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by
Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, 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 event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of the
Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or
transaction(s).
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4. Indemnification
for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness, or is made (or asked to) respond to discovery requests, in
any Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred
by him or on his behalf in connection
therewith.
5.
Advancement of
Expenses. Notwithstanding any
provision to the contrary in this Agreement, the Company shall
advance all Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding by reason of Indemnitee’s
Corporate Status within thirty (30) days after the receipt by the
Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by a
written undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified against such Expenses.
Any advances and undertakings to repay pursuant to this
Section
5
shall be unsecured and interest free
and without reference to the financial ability of the Indemnitee to
make such repayment or to such Indemnitee’s ultimate
entitlement to indemnification under other provisions of this
Agreement. Advancement of Expenses pursuant to this
Section
5
shall not require approval of the
Board or the stockholders of the Company, or of any other person or
body. The Secretary of the Company shall promptly advise the Board
in writing of the request for advancement of Expenses, of the
amount and other details of the advancement and of the undertaking
to make repayment pursuant to this Section 5. Advances shall
include any and all reasonable Expenses incurred pursuing an action
to enforce this right of advancement, including Expenses incurred
preparing and forwarding statements to the Company to support the
advances claimed.
6.
Procedures and
Presumptions for Determination of Entitlement to
Indemnification. It is the
intent of this Agreement to secure for Indemnitee rights of
indemnity that are as favorable as may be permitted under the DGCL
and public policy of the State of Delaware. Accordingly, the
parties agree that the following procedures and presumptions shall
apply in the event of any question as to whether Indemnitee is
entitled to indemnification under this
Agreement:
(a)
Initial
Request. To obtain
indemnification under this Agreement, Indemnitee shall submit to
the Company a written request, including therein or therewith such
documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification including,
but not limited to, a description of the nature of the Proceeding
and the facts underlying such Proceeding. The Secretary of the
Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification. Notwithstanding the
foregoing, any failure of Indemnitee to provide such a request to
the Company, or to provide such a request in a timely fashion,
shall not relieve the Company of any liability that it may have to
Indemnitee unless, and to the extent that, such failure actually
and materially prejudices the interests of the
Company.
4
(b)
Method of
Determination. Upon written
request by Indemnitee for indemnification pursuant to the first
sentence of Section
6(a)
hereof, a determination (if required
by applicable law) with respect to Indemnitee’s entitlement
to indemnification shall be made as follows: (1) if a Change of
Control has occurred, unless Indemnitee shall request in writing
that such determination be made in accordance with clause (2) of
this Section
6(b),
the determination shall be made by Independent Counsel in a written
statement to the Board, a copy of which shall be delivered to
Indemnitee; or (2) if a Change of Control has not occurred, the
determination shall be made by (A) the Board by a majority vote of
a quorum consisting of Disinterested Directors (or pursuant to
unanimous written consent in lieu of a meeting if all of the
Company’s Directors are Disinterested Directors), (B) a
committee of Disinterested Directors designated by a majority vote
of the Disinterested Directors, even though less than a quorum of
the Board, (C) if there are no such Disinterested Directors or, if
such Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, or (D) if so directed by the Board of
Directors, by the stockholders of the Company.
(c)
Selection, Payment,
Discharge, of Independent Counsel. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant
to Section 6(b)
of this Agreement, the Independent
Counsel shall be selected, paid, and discharged in the following
manner: (1) if a Change of Control has not occurred, the
Independent Counsel shall be selected by the Board of Directors,
and the Company shall give written notice to Indemnitee advising
Indemnitee of the identity of the Independent Counsel so selected,
or (2) if a Change of Control has occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request
that such selection be made by the Board, in which event clause (1)
of this Section 6(c) shall apply), and Indemnitee shall give
written notice to the Company advising it of the identity of the
Independent Counsel so selected. Following the initial selection of
Independent Counsel described in clauses (1) and (2) of this
Section 6(c),
Indemnitee or the Company, as the case may be, may, within 10 days
after such written notice of selection has been given, deliver to
the other party a written objection to such selection. Such
objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in Section
13
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 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. Either the Company or Indemnitee may
petition the Delaware Court (as defined in Section 20) if the
parties have been unable to agree on the selection of Independent
Counsel within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section
6(a)
of this Agreement. Such petition may
request a determination whether an objection to the party’s
selection of Independent Counsel is without merit and/or seek the
appointment as Independent Counsel of a person selected by the
Delaware Court or by such other person as the Delaware Court shall
designate. A person so appointed shall act as Independent Counsel
under this Section 6.
The
Company shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6 hereof, and the Company shall
pay all reasonable fees and expenses incident to the procedures of
Section
6(c) hereof,
regardless of the manner in which such Independent Counsel was
selected or appointed. If it is determined that Indemnitee is
entitled to indemnification under this Section 6, payment shall be
made within ten (10) days.
(d) Burden
of Proof. In making a
determination with respect to entitlement to indemnification
hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome
this presumption shall, to the maximum extent not prohibited by
law, have the burden of proof and the burden of persuasion by clear
and convincing evidence. Neither the failure of the Company
(including by its directors or independent legal counsel) to have
made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct, nor an actual determination by the Company (including by
its directors or independent legal counsel) that Indemnitee has not
met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
5
(e)
Reliance as Safe
Harbor. For purposes of any
determination of “good faith”, Indemnitee shall be
deemed to have acted in good faith if Indemnitee’s action is
based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to
Indemnitee by the officers of the Enterprise (as hereinafter
defined) in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or
reports made to the Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with
reasonable care by the Enterprise. In addition, the knowledge
and/or actions, or failure to act, of any director, officer, agent
or employee of the Enterprise shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this
Agreement. Whether or not the foregoing provisions of this
Section
6(e)
are satisfied, it shall in any event
be presumed that Indemnitee has at all times acted in good faith
and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company. Anyone seeking to overcome this
presumption shall, to the maximum extent not prohibited by law,
have the burden of proof and the burden of persuasion by clear and
convincing evidence.
(f) Cooperation.
Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to Indemnitee’s
entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation
or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any Independent
Counsel, member of the Board of Directors or stockholder of the
Company shall act reasonably and in good faith in making a
determination regarding the Indemnitee’s entitlement to
indemnification under this Agreement. Any costs or expenses
(including attorneys’ fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold Indemnitee harmless
therefrom.
(g) Presumptions.
In making a determination with respect to entitlement to
indemnification hereunder, it shall be presumed that Indemnitee has
been successful on the merits or otherwise in such action, suit or
proceeding. Anyone seeking to overcome this presumption shall, to
the extent not prohibited by law, have the burden of proof and the
burden of persuasion by clear and convincing
evidence.
(h) Effect
of Other Proceedings. 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 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 conduct was unlawful.
(a)
In
the event that (i) a determination is made pursuant to
Section
6
of this Agreement that Indemnitee is
not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to
Section
5
of this Agreement, (iii) no
determination of entitlement to indemnification is made pursuant
to Section
6(b)
of this Agreement within 90 days after
receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to this Agreement
within ten (10) days after receipt by the Company of a written
request therefor, or (v) payment of indemnification is not made
within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination is
deemed to have been made pursuant to Section
6
of this Agreement, Indemnitee shall be
entitled to an adjudication in the Delaware Court (as defined
in Section 20),
of Indemnitee’s entitlement to such indemnification or
advancement, as the case may be. Indemnitee shall commence such
proceeding seeking an adjudication within 180 days following the
date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section
7(a).
The Company shall not oppose Indemnitee’s right to seek any
such adjudication.
6
(b) In
the event that a determination shall have been made pursuant
to Section
6(b)
of this Agreement that Indemnitee is
not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section
7
shall be conducted in all respects as
a de novo trial on the merits, and Indemnitee shall not be
prejudiced by reason of the adverse determination under
Section
6(b).
(c) If
a determination shall have been made pursuant to
Section
6(b) 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
7, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make
Indemnitee’s misstatement not materially misleading in
connection with the application for indemnification, or (ii) a
prohibition of such indemnification under applicable
law.
(d) In
the event that Indemnitee, pursuant to this Section
7, seeks a judicial adjudication of his rights
under, or to recover damages for breach of, this Agreement, or to
recover under any directors’ and officers’ liability
insurance policies maintained by the Company, the Company shall, to
the maximum extent permitted by law, pay on his behalf, in advance,
any and all expenses (of the types described in the definition of
Expenses in Section
13
of this Agreement) actually and
reasonably incurred by him in such judicial adjudication,
regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of expenses or
insurance recovery.
(e) The
Company shall, to the maximum extent not prohibited by law, be
precluded from asserting in any judicial proceeding commenced
pursuant to this Section
7
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. The Company shall indemnify
Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (within ten (10) days after receipt by the
Company of a written request therefore) advance, to the extent not
prohibited by law, such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee
for indemnification or advance of Expenses from the Company under
this Agreement or under any directors' and officers' liability
insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such
indemnification, advancement of Expenses or insurance recovery, as
the case may be.
(f) Notwithstanding
anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be
required to be made prior to the final disposition of the
Proceeding.
8. Non-Exclusivity;
Survival of Rights; Insurance; Primacy of Indemnification;
Subrogation.
7
(a) The
rights of indemnification and advancement 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, the Bylaws, any agreement, a vote
of stockholders, a resolution of directors or otherwise, of the
Company. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in
Delaware law, whether by statute or judicial decision, permits
greater indemnification than would be afforded currently under the
Certificate of Incorporation, 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. 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. 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.
(b) To
the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers,
employees, or agents or fiduciaries of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise that such person serves at the request of
the Company, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the
coverage available for any director, officer, employee, agent or
fiduciary under such policy or policies. If, at the time of the
receipt of a notice of a claim pursuant to the terms hereof, the
Company has director and officer liability insurance in effect, the
Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such
policies.
(c)
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.
(d) The
Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the
extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or
otherwise.
(e) Except
as provided in paragraph (c) above, the
Company's obligation to indemnify or advance Expenses hereunder to
Indemnitee who is or was serving at the request of the Company as a
director, officer, employee or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise shall be reduced by any amount Indemnitee has actually
received as indemnification or advancement of expenses from such
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise.
9.
Exception to Right of
Indemnification.
Notwithstanding any provision in this Agreement, the Company shall
not be obligated under this Agreement to make any indemnity in
connection with any claim made against
Indemnitee:
(a) for
which payment has actually been made to or on behalf of Indemnitee
under any insurance policy or other indemnity provision, except
with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provision, provided, that the
foregoing shall not affect the rights of Indemnitee set forth
in Section
8(c)
above;
8
(b) for
an accounting of profits made from the purchase and sale (or sale
and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of state statutory law or common
law;
(c) in
connection with any Proceeding (or any part of any Proceeding)
initiated by Indemnitee, including any Proceeding (or any part of
any Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees or other indemnitees, unless (i) the
Board of Directors of the Company authorized the Proceeding (or any
part of any Proceeding) prior to its initiation or (ii) the Company
provides the indemnification, in its sole discretion, pursuant to
the powers vested in the Company under applicable law;
(d) with
respect to remuneration paid to Indemnitee if it is determined by
final judgment or other final adjudication that such remuneration
was in violation of law (and, in this respect, both the Company and
Indemnitee have been advised that the Securities and Exchange
Commission believes that indemnification for liabilities arising
under the federal securities laws is against public policy and is,
therefore, unenforceable and that claims for indemnification should
be submitted to appropriate courts for adjudication, as indicated
in the last paragraph of this Section
9
below);
(e) a
final judgment or other final adjudication is made that
Indemnitee’s conduct was in bad faith, knowingly fraudulent
or deliberately dishonest or constituted willful misconduct (but
only to the extent of such specific determination); or
(f) on
account of conduct that is established by a final judgment as
constituting a breach of Indemnitee’s duty of loyalty to the
Company or resulting in any personal profit or advantage to which
Indemnitee is not legally entitled.
For
purposes of this Section 9, a final judgment or other
adjudication may be reached in either the underlying proceeding or
action in connection with which indemnification is sought or a
separate proceeding or action to establish rights and liabilities
under this Agreement.
Any
provision herein to the contrary notwithstanding, the Company shall
not be obligated pursuant to the terms of this Agreement to
indemnify Indemnitee or otherwise act in violation of any
undertaking appearing in and required by the rules and regulations
promulgated under the Securities Act of 1933, as amended (the
“Act”), or in
any registration statement filed with the SEC under the Act.
Indemnitee acknowledges that paragraph (h) of Item 512 of
Regulation S-K currently generally requires the Company to
undertake in connection with any registration statement filed under
the Act to submit the issue of the enforceability of
Indemnitee’s rights under this Agreement in connection with
any liability under the Act on public policy grounds to a court of
appropriate jurisdiction and to be governed by any final
adjudication of such issue. Indemnitee specifically agrees that any
such undertaking shall supersede the provisions of this Agreement
and to be bound by any such undertaking.
10. Duration
of Agreement. All agreements
and obligations of the Company contained herein shall continue
during the period Indemnitee is an officer or director of the
Company (or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Indemnitee shall be subject to any
Proceeding (or any proceeding commenced under Section
7
hereof) by reason of his Corporate
Status, whether or not he is acting or serving in any such capacity
at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement. This
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors
(including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the
business or assets of the Company), assigns, spouses, heirs,
executors and personal and legal
representatives.
9
11. Security.
To the extent requested by Indemnitee and approved by the Board of
Directors of the Company, the Company may at any time and from time
to time provide security to Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided
to Indemnitee, may not be revoked or released without the prior
written consent of the Indemnitee.
12. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this
Agreement and assumes the obligations imposed on it hereby in order
to induce Indemnitee to serve as an officer or director of the
Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as an officer or director of the
Company.
(b) 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.
(a)
A
“Change of
Control” shall be deemed
to occur upon the earliest to occur after the date of this
Agreement of any of the following events:
(i)
Acquisition of Stock
by Third Party. Any Person (as
defined below) is or becomes the Beneficial Owner (as defined
below), directly or indirectly, of securities of the Company
representing fifteen percent (15%) or more of the combined voting
power of the Company's then outstanding
securities;
(ii) Change
in Board. During any period of
two (2) consecutive years (not including any period prior to the
execution of this Agreement), individuals who at the beginning of
such period constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement
with the Company to effect a transaction described in
Sections
13(a)(i),
13(a)(iii)
or 13(a)(iv))
whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a least a majority of the members of the
Board;
(iii)
Corporate
Transactions. The effective
date of a merger or consolidation of the Company with any other
entity, other than a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior
to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than fifty one percent (51%) of the
combined voting power of the voting securities of the surviving
entity outstanding immediately after such merger or consolidation
and with the power to elect at least a majority of the Board or
other governing body of such surviving entity;
(iv)
Liquidation.
The approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets; and
10
(v) Other
Events. There occurs any other
event of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A (or a response to
any similar item on any similar schedule or form) promulgated under
the Exchange Act (as defined below), whether or not the Company is
then subject to such reporting requirement.
For
purposes of this Section 13(a), the following terms
shall have the following meanings:
(A) “Exchange
Act” shall mean the
Securities Exchange Act of 1934, as amended.
(B) “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of
the Exchange Act; provided, however, that Person shall exclude (i)
the Company, (ii) any trustee or other fiduciary holding securities
under an employee benefit plan of the Company and (iii) any
corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of stock of the Company.
(C) “Beneficial
Owner” shall have the
meaning given to such term in Rule 13d-3 under the Exchange
Act; provided,
however,
that Beneficial Owner shall exclude any Person otherwise becoming a
Beneficial Owner by reason of the stockholders of the Company
approving a merger of the Company with another
entity.
(b) “Corporate
Status” describes the
status of a person who is or was a director, officer, employee,
agent or fiduciary of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise that such person is or was serving at the express
written request of the Company.
(c) “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.
(d) “Enterprise”
shall mean the Company and any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
that Indemnitee is or was serving at the express written request of
the Company as a director, officer, employee, agent or
fiduciary.
(e) “Expenses”
shall include all reasonable attorneys’ fees, retainers,
court costs, transcript costs, fees 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, participating, or being or preparing to be a
witness in a Proceeding, or responding to, or objecting to, a
request to provide discovery in any Proceeding. Expenses also shall
include Expenses incurred in connection with any appeal resulting
from any Proceeding and any federal, state, local or foreign taxes
imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement, including without
limitation the premium, security for, and other costs relating to
any cost bond, supersede as bond, or other appeal bond or its
equivalent. Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(f) “Independent
Counsel” means a law
firm, or a 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
with respect to matters concerning Indemnitee under this Agreement,
or of 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. The Company agrees
to pay the reasonable fees of the Independent Counsel referred to
above and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant
hereto.
11
(g) “Proceeding”
includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or
completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative or
investigative, in which Indemnitee was, is or will be involved as a
party or otherwise, by reason of the fact that Indemnitee is or was
an officer or director of the Company, by reason of any action
taken by him or of any inaction on his part while acting as an
officer or director of the Company, or by reason of the fact that
he is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other Enterprise; in each case
whether or not he is acting or serving in any such capacity at the
time any liability or expense is incurred for which indemnification
can be provided under this Agreement; including one pending on or
before the date of this Agreement, but excluding one initiated by
an Indemnitee pursuant to Section
7
of this Agreement to enforce his
rights under this Agreement.
14. Severability.
The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other
provision. Without limiting the generality of the foregoing, this
Agreement is intended to confer upon Indemnitee indemnification
rights to the fullest extent permitted by applicable laws. In the
event any provision hereof conflicts with any applicable law, such
provision shall be deemed modified, consistent with the
aforementioned intent, to the extent necessary to resolve such
conflict.
15. Modification
and Waiver. No supplement,
modification, termination or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto.
No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a
continuing waiver.
16. Notice
By Indemnitee. Indemnitee
agrees promptly to notify the Company in writing upon being served
with or otherwise receiving any summons, citation, subpoena,
complaint, indictment, information or other document relating to
any Proceeding or matter which may be subject to indemnification
covered hereunder. The failure to so notify the Company shall not
relieve the Company of any obligation which it may have to
Indemnitee under this Agreement or otherwise unless and only to the
extent that such failure or delay materially prejudices the
Company.
17. Notices.
All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified, (b)
when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed,
then on the next business day, (c) five (5) days after having been
sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be
sent:
(a) To
Indemnitee at the address set forth below Indemnitee signature
hereto.
12
(b) To
the Company at:
0000
Xxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attn: Chief
Executive Officer
or to
such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may
be.
18. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same Agreement. This Agreement may also be
executed and delivered by facsimile signature and in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same
instrument.
19. Headings.
The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction
thereof.
20.
Governing Law and
Consent to Jurisdiction. This
Agreement and the legal relations among the parties shall be
governed by, and construed and enforced in accordance with, the
laws of the State of Delaware, without regard to its conflict of
laws rules. The Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out
of or in connection with this Agreement shall be brought only in
the Chancery Court of the State of Delaware (the
“Delaware
Court”), and not in any
other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive
jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement,
(iii) appoint, to the extent such party is not otherwise subject to
service of process in the State of Delaware, irrevocably
Corporation Service Company as its agent in the State of Delaware
as such party's agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same
legal force and validity as if served upon such party personally
within the State of Delaware, (iv) waive any objection to the laying of venue of
any such action or proceeding in the Delaware Court, and (v) waive,
and agree not to plead or to make, any claim that any such action
or proceeding brought in the Delaware Court has been brought in an
improper or inconvenient forum.
SIGNATURE PAGE FOLLOWS
13
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
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COMPANY
ENDRA LIFE SCIENCES, Inc.
By:____________________________________
Name:
Title:
INDEMNITEE
______________________________________
Name:
Address:
______________________________________
______________________________________
______________________________________
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14
