INDEMNITY AGREEMENT
EXHIBIT
10.8
This
Indemnity Agreement, dated as of September __, 2007, is made by and between
Transdel Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and
_________________ (the “Indemnitee”).
RECITALS
A. The
Company is aware that competent and experienced persons are increasingly
reluctant to serve as directors, officers or agents of corporations unless
they
are protected by comprehensive liability insurance or indemnification, due
to
increased exposure to litigation costs and risks resulting from their service
to
such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors, officers and
other agents.
B. The
statutes and judicial decisions regarding the duties of directors and officers
are often difficult to apply, ambiguous, or conflicting, and therefore fail
to
provide such directors, officers and agents with adequate, reliable knowledge
of
legal risks to which they are exposed or information regarding the proper course
of action to take.
C. Plaintiffs
often seek damages in such large amounts and the costs of litigation may be
so
enormous (whether or not the case is meritorious), that the defense and/or
settlement of such litigation is often beyond the personal resources of
directors, officers and other agents.
D. The
Company believes that it is unfair for its directors, officers and agents and
the directors, officers and agents of its subsidiaries to assume the risk of
huge judgments and other expenses which may occur in cases in which the
director, officer or agent received no personal profit and in cases where the
director, officer or agent was not culpable.
E. The
Company recognizes that the issues in controversy in litigation against a
director, officer or agent of a corporation such as the Company or its
subsidiaries are often related to the knowledge, motives and intent of such
director, officer or agent, that he is usually the only witness with knowledge
of the essential facts and exculpating circumstances regarding such matters,
and
that the long period of time which usually elapses before the trial or other
disposition of such litigation often extends beyond the time that the director,
officer or agent can reasonably recall such matters; and may extend beyond
the
normal time for retirement for such director, officer or agent with the result
that he, after retirement or in the event of his death, his spouse, heirs,
executors or administrators, may be faced with limited ability and undue
hardship in maintaining an adequate defense, which may discourage such a
director, officer or agent from serving in that position.
F. Based
upon their experience as business managers, the Board of Directors of the
Company (the “Board”)
has
concluded that, to retain and attract talented and experienced individuals
to
serve as directors, officers and agents of the Company and its subsidiaries
and
to encourage such individuals to take the business risks necessary for the
success of the Company and its subsidiaries, it is necessary for the Company
to
contractually indemnify its directors, officers and agents and the directors,
officers and agents of its subsidiaries, and to assume for
itself
maximum liability for expenses and damages in connection with claims against
such directors, officers and agents in connection with their service to the
Company and its subsidiaries, and has further concluded that the failure to
provide such contractual indemnification could result in great harm to the
Company and its subsidiaries and the Company’s stockholders.
G. Section
145 of the General Corporation Law of Delaware, under which the Company is
organized (“Section
145”),
empowers the Company to indemnify its directors, officers, employees and agents
by agreement and to indemnify persons who serve, at the request of the Company,
as the directors, officers, employees or agents of other corporations or
enterprises, and expressly provides that the indemnification provided by Section
145 is not exclusive.
H. The
Company desires and has requested the Indemnitee to serve or continue to serve
as a director, officer or agent of the Company and/or one or more subsidiaries
of the Company free from undue concern for claims for damages arising out of
or
related to such services to the Company and/or one or more subsidiaries of
the
Company.
I. Indemnitee
is willing to serve, or to continue to serve, the Company and/or one or more
subsidiaries of the Company, provided that he is furnished the indemnity
provided for herein.
AGREEMENT
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as
follows:
1. Definitions.
(a) Agent.
For the
purposes of this Agreement, “agent” of the Company means any person who is or
was a director, officer, employee or other agent of the Company or a subsidiary
of the Company; or is or was serving at the request of, for the convenience
of,
or to represent the interests of the Company or a subsidiary of the Company
as a
director, officer, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise; or was a director,
officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the Company or a subsidiary of the Company, or was
a
director, officer, employee or agent of another enterprise at the request of,
for the convenience of, or to represent the interests of such predecessor
corporation.
(b) Expenses.
For
purposes of this Agreement, “expenses” include all out-of-pocket costs of any
type or nature whatsoever (including, without limitation, all attorneys’ fees
and related disbursements), actually and reasonably incurred by the Indemnitee
in connection with either the investigation, defense or appeal of a proceeding
or establishing or enforcing a right to indemnification under this Agreement
or
Section 145 or otherwise; provided, however, that “expenses” shall not include
any judgments.
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(c) Proceeding.
For the
purposes of this Agreement, “proceeding” means any threatened, pending, or
completed action, suit or other proceeding, whether civil, criminal,
administrative, or investigative.
(d) Subsidiary.
For
purposes of this Agreement, “subsidiary” means any corporation of which more
than 50% of the outstanding voting securities is owned directly or indirectly
by
the Company, by the Company and one or more other subsidiaries, or by one or
more other subsidiaries.
2. Agreement
to Serve.
The
Indemnitee agrees to serve and/or continue to serve as agent of the Company,
at
its will (or under separate agreement, if such agreement exists), in the
capacity Indemnitee currently serves as an agent of the Company, so long as
he
is duly appointed or elected and qualified in accordance with the applicable
provisions of the Bylaws of the Company or any subsidiary of the Company or
until such time as he tenders his resignation in writing; provided, however,
that nothing contained in this Agreement is intended to create any right to
continued employment by Indemnitee.
3. Liability
Insurance.
(a) Maintenance
of D&O Insurance.
The
Company hereby covenants and agrees that, so long as the Indemnitee shall
continue to serve as an agent of the Company and thereafter so long as the
Indemnitee shall be subject to any possible proceeding by reason of the fact
that the Indemnitee was an agent of the Company, the Company, subject to Section
3(c), shall promptly obtain and maintain in full force and effect directors’ and
officers’ liability insurance (“D&O
Insurance”)
in
reasonable amounts from established and reputable insurers.
(b) Rights
and Benefits.
In all
policies of D&O Insurance, the Indemnitee shall be named as an insured in
such a manner as to provide the Indemnitee the same rights and benefits as
are
accorded to the most favorably insured of the Company’s directors, if the
Indemnitee is a director; or of the Company’s officers, if the Indemnitee is not
a director of the Company but is an officer; or of the Company’s key employees,
if the Indemnitee is not a director or officer but is a key
employee.
(c) Limitation
on Required Maintenance of D&O Insurance.
Notwithstanding the foregoing, the Company shall have no obligation to obtain
or
maintain D&O Insurance if the Company determines in good faith that such
insurance is not reasonably available, the premium costs for such insurance
are
disproportionate to the amount of coverage provided, the coverage provided
by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary of the Company.
4. Mandatory
Indemnification.
Subject
to Section 8 below, the Company shall indemnify the Indemnitee as
follows:
(a) Successful
Defense.
To the
extent the Indemnitee has been successful on the merits or otherwise in defense
of any proceeding (including, without limitation, an action by or in the right
of the Company) to which the Indemnitee was a party by reason of the fact that
he is or was an agent of the Company at any time, against all expenses of any
type whatsoever actually and reasonably incurred by him in connection with
the
investigation, defense or appeal of such proceeding.
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(b) Third
Party Actions.
If the
Indemnitee is a person who was or is a party or is threatened to be made a
party
to any proceeding (other than an action by or in the right of the Company)
by
reason of the fact that he is or was an agent of the Company, or by reason
of
anything done or not done by him in any such capacity, the Company shall
indemnify the Indemnitee against any and all expenses and liabilities of any
type whatsoever (including, but not limited to, judgments, fines, ERISA excise
taxes and penalties, and amounts paid in settlement) actually and reasonably
incurred by him in connection with the investigation, defense, settlement or
appeal of such proceeding, provided the Indemnitee acted in good faith and
in a
manner he reasonably believed to be in or not opposed to the best interests
of
the Company and its stockholders, and, with respect to any criminal action
or
proceeding, had no reasonable cause to believe his conduct was
unlawful.
(c) Derivative
Actions.
If the
Indemnitee is a person who was or is a party or is threatened to be made a
party
to any proceeding by or in the right of the Company by reason of the fact that
he is or was an agent of the Company, or by reason of anything done or not
done
by him in any such capacity, the Company shall indemnify the Indemnitee against
all expenses actually and reasonably incurred by him in connection with the
investigation, defense, settlement, or appeal of such proceeding, provided
the
Indemnitee acted in good faith and in a manner he reasonably believed to be
in
or not opposed to the best interests of the Company and its stockholders; except
that no indemnification under this subsection 4(c) shall be made in respect to
any claim, issue or matter as to which such person shall have been finally
adjudged to be liable to the Company by a court of competent jurisdiction unless
and only to the extent that the court in which such proceeding was brought
shall
determine upon application that, despite the adjudication of liability but
in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such amounts which the court shall deem
proper.
(d) Actions
where Indemnitee is Deceased.
If the
Indemnitee is a person who was or is a party or is threatened to be made a
party
to any proceeding by reason of the fact that he is or was an agent of the
Company, or by reason of anything done or not done by him in any such capacity,
and if prior to, during the pendency or after completion of such proceeding
Indemnitee becomes deceased, the Company shall indemnify the Indemnitee’s heirs,
executors and administrators against any and all expenses and liabilities of
any
type whatsoever (including, but not limited to, judgments, fines, ERISA excise
taxes and penalties, and amounts paid in settlement) actually and reasonably
incurred to the extent Indemnitee would have been entitled to indemnification
pursuant to Sections 4(a), 4(b), or 4(c) above were Indemnitee still
alive.
(e) Notwithstanding
the foregoing, the Company shall not be obligated to indemnify the Indemnitee
for expenses or liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes and penalties, and amounts paid in
settlement) for which payment is actually made to or on behalf of Indemnitee
under a valid and collectible insurance policy of D&O Insurance, or under a
valid and enforceable indemnity clause, by-law or agreement.
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5. Partial
Indemnification.
If the
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any expenses or liabilities of any
type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes
and penalties, and amounts paid in settlement) incurred by him in the
investigation, defense, settlement or appeal of a proceeding, but not entitled,
however, to indemnification for all of the total amount hereof, the Company
shall nevertheless indemnify the Indemnitee for such total amount except as
to
the portion hereof to which the Indemnitee is not entitled.
6. Mandatory
Advancement of Expenses.
Subject
to Section 8(a) below, the Company shall advance all expenses incurred by the
Indemnitee in connection with the investigation, defense, settlement or appeal
of any proceeding to which the Indemnitee is a party or is threatened to be
made
a party by reason of the fact that the Indemnitee is or was an agent of the
Company. Indemnitee hereby undertakes to repay such amounts advanced only if,
and to the extent that, it shall be determined ultimately that the Indemnitee
is
not entitled to be indemnified by the Company as authorized hereby. The advances
to be made hereunder shall be paid by the Company to the Indemnitee within
twenty (20) days following delivery of a written request therefor by the
Indemnitee to the Company. In the event that the Company fails to pay expenses
as incurred by the Indemnitee as required by this paragraph, Indemnitee may
seek
mandatory injunctive relief from any court having jurisdiction to require the
Company to pay expenses as set forth in this paragraph. If Indemnitee seeks
mandatory injunctive relief pursuant to this paragraph, it shall not be a
defense to enforcement of the Company’s obligations set forth in this paragraph
that Indemnitee has an adequate remedy at law for damages.
7. Notice
and Other Indemnification Procedures.
(a) Promptly
after receipt by the Indemnitee of notice of the commencement of or the threat
of commencement of any proceeding, the Indemnitee shall, if the Indemnitee
believes that indemnification with respect thereto may be sought from the
Company under this Agreement, notify the Company of the commencement or threat
of commencement thereof.
(b) If,
at
the time of the receipt of a notice of the commencement of a proceeding pursuant
to Section 7(a) hereof, the Company has D&O 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 the Company shall be obligated to pay the expenses of any proceeding
against the Indemnitee, the Company, if appropriate, shall be entitled to assume
the defense of such proceeding, with counsel approved by the Indemnitee, upon
the delivery to the Indemnitee of written notice of its election so to do.
After
delivery of such notice, approval of such counsel by the Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
the
Indemnitee under this Agreement for any fees of counsel subsequently incurred
by
the Indemnitee with respect to the same proceeding, provided that (i) the
Indemnitee shall have the right to employ his counsel in any such proceeding
at
the Indemnitee’s expense; and (ii) if (A) the employment of counsel by the
Indemnitee has been previously authorized by the Company, (B) the Indemnitee
shall have reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee in the conduct of any such defense, or (C) the
Company shall not, in fact, have employed counsel to assume the defense of
such
proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company.
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8. Exceptions.
Any
other provision herein to the contrary notwithstanding, the Company shall not
be
obligated pursuant to the terms of this Agreement:
(a) Claims
Initiated by Indemnitee.
To
indemnify or advance expenses to the Indemnitee with respect to proceedings
or
claims initiated or brought voluntarily by the Indemnitee and not by way of
defense, unless (i) such indemnification is expressly required to be made by
law, (ii) the proceeding was authorized by the Board, (iii) such indemnification
is provided by the Company, in its sole discretion, pursuant to the powers
vested in the Company under the General Corporation Law of Delaware or (iv)
the
proceeding is brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 145;
(b) Lack
of Good Faith.
To
indemnify the Indemnitee for any expenses incurred by the Indemnitee with
respect to any proceeding instituted by the Indemnitee to enforce or interpret
this Agreement, if a court of competent jurisdiction determines that each of
the
material assertions made by the Indemnitee in such proceeding was not made
in
good faith or was frivolous; or
(c) Unauthorized
Settlements.
To
indemnify the Indemnitee under this Agreement for any amounts paid in settlement
of a proceeding unless the Company consents to such settlement, which consent
shall not be unreasonably withheld.
9. Non-exclusivity.
The
provisions for indemnification and advancement of expenses set forth in this
Agreement shall not be deemed exclusive of any other rights which the Indemnitee
may have under any provision of law, the Company’s Certificate of Incorporation
or Bylaws, the vote of the Company’s stockholders or disinterested directors,
other agreements, or otherwise, both as to action in his official capacity
and
to action in another capacity while occupying his position as an agent of the
Company, and the Indemnitee’s rights hereunder shall continue after the
Indemnitee has ceased acting as an agent of the Company and shall inure to
the
benefit of the heirs, executors and administrators of the
Indemnitee.
10. Enforcement.
Any
right to indemnification or advances granted by this Agreement to Indemnitee
shall be enforceable by or on behalf of Indemnitee in any court of competent
jurisdiction if (i) the claim for indemnification or advances is denied, in
whole or in part, or (ii) no disposition of such claim is made within ninety
(90) days of request therefor. Indemnitee, in such enforcement action, if
successful in whole or in part, shall be entitled to be paid also the expense
of
prosecuting his claim. It shall be a defense to any action for which a claim
for
indemnification is made under this Agreement (other than an action brought
to
enforce a claim for expenses pursuant to Section 6 hereof, provided that the
required undertaking has been tendered to the Company) that Indemnitee is not
entitled to indemnification because of the limitations set forth in Sections
4
and 8 hereof. Neither the failure of the Corporation (including its Board of
Directors or its stockholders) to have made a determination prior to the
commencement of such enforcement action that indemnification of Indemnitee
is
proper in the circumstances, nor an actual determination by the Company
(including its Board of Directors or its stockholders) that such indemnification
is improper, shall be a defense to the action or create a presumption that
Indemnitee is not entitled to indemnification under this Agreement or
otherwise.
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11. Subrogation.
In the
event of payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who
shall
execute all documents required and shall do all acts that may be necessary
to
secure such rights and to enable the Company effectively to bring suit to
enforce such rights.
12. Survival
of Rights.
(a) All
agreements and obligations of the Company contained herein shall continue during
the period Indemnitee is an agent of the Company and shall continue thereafter
so long as Indemnitee shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
arbitrational, administrative or investigative, by reason of the fact that
Indemnitee was serving in the capacity referred to herein.
(b) The
Company shall require any successor to the Company (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all
of
the business or assets of the Company, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place.
13. Interpretation
of Agreement.
It is
understood that the parties hereto intend this Agreement to be interpreted
and
enforced so as to provide indemnification to the Indemnitee to the fullest
extent permitted by law including those circumstances in which indemnification
would otherwise be discretionary.
14. Severability.
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 the Agreement (including without
limitation, all portions of any paragraphs of this Agreement containing any
such
provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby, and (ii) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, all portions of any paragraph of
this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision
held
invalid, illegal or unenforceable and to give effect to Section 13
hereof.
15. Modification
and Waiver.
No
supplement, modification 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.
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16. Notice.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed duly given (i) if delivered by hand and
receipted for by the party addressee or (ii) if mailed by certified or
registered mail with postage prepaid, on the third business day after the
mailing date. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written
notice.
17. Governing
Law.
This
Agreement shall be governed exclusively by and construed according to the laws
of the State of Delaware as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware.
The
parties hereto have entered into this Indemnity Agreement effective as of the
date first above written.
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Transdel
Pharmaceuticals,
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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Address:
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