EXHIBIT 10.1
IMARX THERAPEUTICS, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is entered into on
______________________, between IMARX THERAPEUTICS, INC. a Delaware corporation
(the "Company"), and ___________________, a director, officer, or both, of the
Company and/or one or more of its subsidiaries ("Indemnitee"), for good and
valuable consideration as set forth below.
RECITALS
A. The Company recognizes the importance, and increasing difficulty, of
obtaining adequate liability insurance coverage for its directors, officers,
employees, agents and fiduciaries.
B. The Company further recognizes that, at the same time as the
availability and coverage of such insurance has become more limited, litigation
against corporate directors, officers, employees, agents and fiduciaries has
continued to increase.
C. Section 145 of the Delaware General Corporation Law, ("Statute") under
which the Company is organized, empowers the Company by agreement to indemnify
its directors, officers, employees, agents, and persons who serve, at the
request of the Company, as the directors, officers, employees or agents of other
corporations or enterprises related to the Company, and expressly provides that
the indemnification provided by Section 145 of the Statute is not exclusive.
D. Article VIII of the Company's Bylaws (the "Bylaws") provides for
indemnification of the Company's directors and officers to the full extent
authorized by the Statute, and that such provisions are not exclusive and may be
supplemented by agreements between the Company and its officers and directors.
E. The Company desires to retain and attract the services of highly
qualified individuals, such as Indemnitee, to serve the Company and, in that
connection, also desires to provide contractually for indemnification of, and
advancement of expenses to, Indemnitee to the full extent authorized by law.
AGREEMENT
1. INDEMNIFICATION
a. SCOPE. Subject to Section 1(b), the Company agrees to hold harmless
and indemnify Indemnitee against any Damages (as defined in Section 1(d))
incurred by Indemnitee with respect to any Proceeding (as defined in Section
1(e)) to which Indemnitee is or is threatened to be made a party or in which
Indemnitee is otherwise involved (including, but not limited to, as a witness),
to the full extent authorized or permitted by law, except that Indemnitee shall
have no right to indemnification on account of: (i) acts or omissions of
Indemnitee that
have been finally adjudged (by a court having proper jurisdiction, and after all
rights of appeal have been exhausted or lapsed, herein "Finally Adjudged") to be
not in good faith or which involve intentional misconduct or a knowing violation
of law; (ii) any breach of the director's duty of loyalty to the Company or its
stockholders; (iii) any liability under Section 174 of the Statute; (iv) any
transaction with respect to which it has been Finally Adjudged that Indemnitee
personally received an improper personal benefit; or (v) any suit in which it is
Finally Adjudged that Indemnitee is liable for an accounting of profits made
from the purchase or sale by Indemnitee of securities of the Company in
violation of the provisions of Section 16(b) of the Securities Exchange Act of
1934 and amendments thereto.
b. DERIVATIVE ACTIONS. The obligations described in Section 1(a) shall
apply with equal force in situations where the Indemnitee is a party or
threatened to be made a party to any Proceeding by or in the right of the
Company, except that no indemnification shall be made in respect to any claim,
issue or matter in such Proceeding as to which the Indemnitee has been Finally
Adjudged to be liable to the Company unless, and only to the extent that, the
court in which such Proceeding was brought has determined that, despite the
adjudication of liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such amounts as
the court deems proper.
c. CHANGES TO INDEMNIFICATION RIGHT. Indemnitee's right to be
indemnified to the full extent authorized by law shall include the benefits of
any change, after the date of this Agreement, in the Statute or other applicable
law regarding the right of a Delaware corporation to indemnify directors or
officers, to the extent that it would expand Indemnitee's rights hereunder. Any
such change that would narrow or interfere with Indemnitee's rights hereunder
shall not apply to, limit, or affect the interpretation of, this Agreement,
unless and then only to the extent that it has been Finally Adjudged that its
application hereto does not constitute an unconstitutional impairment of
Indemnitee's contract rights or otherwise violate applicable law.
d. INDEMNIFIED AMOUNTS. If Indemnitee is or is threatened to be made a
party to, or is otherwise involved (including, but not limited to, as a witness)
in, any Proceeding, the Company shall hold harmless and indemnify Indemnitee
from and against any and all losses, claims, damages, costs, expenses and
liabilities incurred in connection with investigating, defending, being a
witness in, participating in or otherwise being involved in (including on
appeal), or preparing to defend, be a witness in, participate in or otherwise be
involved in (including on appeal), such Proceeding, including but not limited to
attorneys' fees, judgments, fines, penalties, ERISA excise taxes, amounts paid
in settlement, any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments pursuant to this
Agreement, and other expenses (collectively, "Damages"), including all interest,
assessments or charges paid or payable in connection with or in respect of such
Damages.
e. DEFINITION OF PROCEEDING. For purposes of this Agreement,
"Proceeding" shall mean any actual, pending, threatened or completed action,
suit, claim, investigation, hearing or proceeding (whether civil, criminal,
administrative or investigative, and whether formal or informal) in which
Indemnitee is, has been or becomes involved, or regarding which Indemnitee is
threatened to be made a named defendant or respondent, based in whole or in part
on or arising out of the fact that Indemnitee is or was a director, officer,
member of a board committee, employee or agent of the Company and/or any of its
subsidiaries or that, being or
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having been such a director, officer, member of a board committee, employee or
agent, Indemnitee is or was serving at the request of the Company as a director,
officer, partner, employee, trustee or agent of another corporation or of a
foreign or domestic corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise related to the Company (each, a "Related
Company"), whether the basis of such action, suit, claim, investigation, hearing
or proceeding is alleged action or omission by Indemnitee in an official
capacity as a director, officer, committee member, partner, employee, trustee or
agent or in any other capacity while serving as a director, officer, committee
member, partner, employee, trustee or agent. "Proceeding" shall not, however,
include any action, suit, claim, investigation, hearing or proceeding instituted
by or at the direction of Indemnitee unless pursuant to an Enforcement Action
(as defined in Section 3(a)) or its institution has been authorized by the
Company's Board of Directors (the "Board").
f. NOTIFICATIONS.
i. Promptly after receipt by Indemnitee of notice of the
commencement (including a threatened assertion or commencement) of any
Proceeding, Indemnitee will, if it is reasonably foreseeable that a claim in
respect thereof will be made against the Company under this Agreement, notify
the Chair of the Board's [AUDIT AND COMPLIANCE COMMITTEE OR THE NOMINATING AND
CORPORATE GOVERNANCE COMMITTEE] of the commencement thereof (which notice shall
be in the form of Exhibit A hereto) (the "Indemnification Notice"). A failure to
notify the Company in accordance with this subsection (f)(i) will not, however,
relieve the Company from any liability to Indemnitee under this Agreement unless
(and then only to the extent that) such failure is Finally Adjudged to have
materially prejudiced the Company's ability to defend the Proceeding.
ii. At the same time, or from time to time thereafter, Indemnitee
may further notify the Chair of the Board's [AUDIT AND COMPLIANCE COMMITTEE OR
THE NOMINATING AND CORPORATE GOVERNANCE COMMITTEE], by delivery of a
supplemental Indemnification Notice (or by checking the second box and providing
the corresponding information on the initial Indemnification Notice), of any
Proceeding for which indemnification is being sought under this Agreement.
g. DETERMINATION OF ENTITLEMENT.
i. To the extent Indemnitee has been wholly successful, on the
merits or otherwise, in the defense of any Proceeding, the Company shall
indemnify Indemnitee against all expenses (including attorneys' fees) incurred
by Indemnitee in connection with the Proceeding, within ten (10) days after
receipt of an Indemnification Notice delivered pursuant to subsection (g)(ii).
ii. In the event that subsection (g)(i) above is inapplicable, or
does not apply to the entire Proceeding, the Company shall indemnify Indemnitee
within thirty (30) days after receipt of an Indemnification Notice delivered
pursuant to subsection (f)(ii) unless during such thirty (30) day period the
[AUDIT AND COMPLIANCE COMMITTEE OR THE NOMINATING AND CORPORATE GOVERNANCE
COMMITTEE] of the Board delivers to Indemnitee a written notice contesting
Indemnitee's indemnification claim (the "Contest Notice"), which Contest Notice
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shall state with particularity the reasons for the decision to challenge
Indemnitee's indemnification claim and the evidence the Company would present in
any forum in which Indemnitee might seek review of such decision. The Company's
failure to deliver a Contest Notice within thirty (30) days after the Company's
receipt of an Indemnification Notice pursuant to subsection (f)(ii) shall
obligate the Company unconditionally to indemnify Indemnitee to the extent
requested in the Indemnification Notice.
iii. At any time following receipt of a Contest Notice,
Indemnitee shall be entitled to select a forum for the review of, and in which
the Company will defend, the Contest Notice and the Company's decision to
challenge Indemnitee's indemnification claim. Such selection shall be made from
among the following alternatives, by delivering a written notice to the Chair of
the Board's [AUDIT AND COMPLIANCE COMMITTEE OR THE NOMINATING AND CORPORATE
GOVERNANCE COMMITTEE] indicating Indemnitee's selection of forum:
(a) A majority vote of the directors who are not parties to
the Proceeding for which indemnification is being sought ("Independent
Directors"), even though less than a quorum;
(b) A committee of Independent Directors designated by a
vote of Independent Directors, even though less than a quorum;
(c) Special Legal Counsel (as defined in subsection (g)(vii)
below);
(d) The stockholders of the Company; or
(e) A panel of three independent arbitrators, one of whom is
selected by the Company, another of whom is selected by Indemnitee and the last
of whom is selected by the first two arbitrators so selected,
provided, that nothing in this Section 1(g) shall prevent Indemnitee at any time
from bringing suit against the Company to recover the amount of the
indemnification claim (whether or not Indemnitee has otherwise exhausted its
contractual remedies hereunder). In addition, any determination by a forum
selected by Indemnitee that Indemnitee is not entitled to indemnification, or
any failure to make the payments requested in the Indemnification Notice, shall
be subject to judicial review by any court of competent jurisdiction, as
described in Section 3.
iv. In any forum in which the Company defends its Contest Notice
and its decision to challenge Indemnitee's indemnification claim under this
Section 1(g), the presumptions, burdens and standard of review set forth in
Section 3(c) shall apply and are incorporated into this Section 1(g) by
reference, except as otherwise expressly provided in Section 3(c).
v. As soon as practicable, and in no event later than fifteen
(15) days after the forum has been selected pursuant to subsection (g)(iii)
above, the Company shall, at its own expense, submit the defense of its Contest
Notice and the question of Indemnitee's right to indemnification to the selected
forum.
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vi. The forum selected shall render its decision concerning the
validity of the Contest Notice and the Company's decision to deny Indemnitee's
indemnification claim within thirty (30) days after the forum has been selected
in accordance with subsection (g)(iii).
vii. For the purposes of this Agreement, "Special Legal Counsel"
shall mean an attorney or firm of attorneys, selected by Indemnitee and approved
by the Company (which approval shall not be unreasonably withheld), who must not
have performed other services for the Company or Indemnitee within the last
three years.
2. EXPENSE ADVANCES
a. GENERALLY. The right to indemnification conferred by Section 1
shall include the right to have the Company pay Indemnitee's attorneys' fees and
other expenses, including but not limited to out of pocket costs and
disbursements, incurred in connection with any Proceeding, or in connection with
bringing, defending and/or pursuing an Enforcement Action (as defined in Section
3(a)), as such expenses are incurred and in advance of the final disposition of
such Proceeding or Enforcement Action (such entitlement is referred to
hereinafter as an "Expense Advance").
b. UNDERTAKING. The Company's obligation to provide an Expense Advance
is subject only to the following condition: if the Proceeding arose in
connection with Indemnitee's service as a director and/or officer of the Company
or member of a committee of the Board (and not in any other capacity in which
Indemnitee rendered service, including but not limited to service to any Related
Company), then Indemnitee or his or her representative must have executed and
delivered to the Chair of the Board's [AUDIT AND COMPLIANCE COMMITTEE OR THE
NOMINATING AND CORPORATE GOVERNANCE COMMITTEE] an undertaking (in the form of
Exhibit B hereto) (the "Statement of Undertaking") to repay all Expense Advances
if and to the extent that it may be Finally Adjudged that Indemnitee is not
entitled to be indemnified for such Expense Advance under one or more of clauses
(i) through (iv) of the first sentence of Section 1(a). The Statement of
Undertaking need not be secured and shall be accepted by the Company without
reference to Indemnitee's financial ability to make repayment. No interest shall
be charged on any obligation to reimburse the Company for any Expense Advance.
c. SERVICE AS WITNESS. Notwithstanding any other provision of this
Agreement, the Company's obligation to indemnify, or provide Expense Advances
under Section 2, to Indemnitee in connection with Indemnitee's appearance as a
witness in a Proceeding at a time when Indemnitee has not been made a named
defendant or respondent to the Proceeding shall be absolute and unconditional,
and not subject to any of the limitations on, or conditions to, Indemnitee's
right to indemnification or to receive an Expense Advance otherwise contained in
this Agreement.
3. PROCEDURES FOR ENFORCEMENT
a. ENFORCEMENT. If a claim for indemnification made by Indemnitee
hereunder is not paid in full (whether or not the provisions of Section 1(g)
have been complied with, or completed), or a claim for an Expense Advance made
by Indemnitee hereunder is not paid in full within twenty (20) days from
delivery of a Statement of Undertaking to the Chair of
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the Board's [AUDIT AND COMPLIANCE COMMITTEE OR THE NOMINATING AND CORPORATE
GOVERNANCE COMMITTEE], Indemnitee may, but need not, at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim (an
"Enforcement Action").
b. REQUIRED INDEMNIFICATION. The court hearing the Enforcement Action
shall order the Company to provide indemnification or to advance expenses to
Indemnitee to the full extent sought in the Enforcement Action if it determines
that (i) the Enforcement Action is brought by Indemnitee to enforce the
Company's obligation under Section 1(g)(ii) unconditionally to indemnify
Indemnitee to the extent requested in the Indemnification Notice where the
Company has failed timely to deliver a Contest Notice, or (ii) the Company
failed to prove by clear and convincing evidence that Indemnitee is not entitled
to indemnification based on one or more of clauses (i) through (v) of the first
sentence of Section 1(a).
c. PRESUMPTIONS, BURDENS AND STANDARD OF REVIEW IN ENFORCEMENT ACTION
OR COMPANY DETERMINATION. In any Enforcement Action (and, except as otherwise
expressly provided in this Section 3(c), in any review of a Contest Notice by a
forum described in Section 1(g)) the following presumptions (and limitations on
presumptions), burdens and standard of review shall apply:
i. The Company shall conclusively be presumed to have entered
into this Agreement and assumed the obligations imposed hereunder in order to
induce Indemnitee to serve or to continue to serve as an director and/or officer
of the Company and/or one or more of its subsidiaries;
ii. This Agreement shall conclusively be presumed to be valid and
binding on the parties hereto;
iii. Submission of an Indemnification Notice in accordance with
Section 1(f)(ii) or a Statement of Undertaking to the Company shall create a
presumption that Indemnitee is entitled to indemnification or an Expense Advance
hereunder, and thereafter the Company shall have the burden of proving by clear
and convincing evidence (sufficient to rebut the foregoing presumption) that
Indemnitee is not entitled to indemnification based on one or more of clauses
(i) through (v) of the first sentence of Section 1(a);
iv. Indemnitee may establish a conclusive presumption of any
objective fact related to an event or occurrence by delivering to the Company a
declaration made under penalty of perjury that such fact is true, provided, that
no such presumption may be established with respect to the ultimate conclusions
set forth in any of clauses (i) through (v) of the first sentence of Section
1(a);
v. If Indemnitee is or was serving as a director, officer,
employee, trustee or agent of a corporation of which a majority of the shares
entitled to vote in the election of its directors is held by the Company or in
an executive or management capacity in a partnership, joint venture, trust or
other enterprise of which the Company or a wholly-owned subsidiary of the
Company is a general partner or has a majority ownership, then such corporation,
partnership, joint venture, trust or enterprise shall conclusively be deemed a
Related
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Company and Indemnitee shall conclusively be deemed to be serving such Related
Company at the request of the Company;
vi. Neither (i) the failure of the Company (including but not
limited to the Board, the Company's officers, independent counsel, Special Legal
Counsel, any arbitrator or the Company's stockholders) to make a determination
prior to the commencement of the Enforcement Action whether indemnification, or
payment of an Expense Advance, of Indemnitee is proper in the circumstances nor
(ii) an actual determination by the Company, the Board, the Company's officers,
independent counsel, Special Legal Counsel, any arbitrator or the Company's
stockholders that Indemnitee is not entitled to indemnification or payment of an
Expense Advance shall be a defense to the Enforcement Action, create a
presumption that Indemnitee is not entitled to indemnification hereunder or be
considered by a court in an Enforcement Action, which shall conduct a de novo
review of the relevant issues; and
vii. If the court hearing the Enforcement Action is unable to
make either of the determinations specified in Sections 3(b)(i) or 3(b)(ii), the
court hearing the Enforcement Action shall nonetheless order the Company to
provide indemnification or to advance expenses to Indemnitee to the full extent
sought in the Enforcement Action if it determines that Indemnitee is fairly and
reasonably entitled to such indemnification or Expense Advance in view of all of
the relevant circumstances, and without regard to the limitations set forth in
clauses (i) through (iv) of the first sentence of Section 1(a). In determining
whether Indemnitee is fairly and reasonably entitled to such indemnification or
expense advance, the court shall weigh (i) the relative benefits received by the
Company and/or any of its subsidiaries or any Related Company, or any of their
affiliates other than Indemnitee, on the one hand, and Indemnitee on the other
from the transaction from which such Proceeding arose or to which such
Proceeding relates, and (ii) the relative fault of the Company and/or any of its
subsidiaries or any Related Company, or any of their affiliates other than
Indemnitee, on the one hand, and of Indemnitee on the other in connection with
the transaction that resulted in such Damages, as well as any other relevant
equitable considerations. The relative fault of the Company and/or any of its
subsidiaries or any Related Company, or any of their affiliates other than
Indemnitee, on the one hand, and of Indemnitee on the other shall be determined
by reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the circumstances
resulting in such Damages. If either (i) the relative benefits received by the
Company and/or any of its subsidiaries or any Related Company, or any of their
affiliates other than Indemnitee, exceed the relative benefits received by
Indemnitee, or (ii) the relative fault of the Company and/or any of its
subsidiaries or any Related Company, or any of their affiliates other than
Indemnitee, exceeds the relative fault of Indemnitee, then Indemnitee shall be
entitled to the full amount of indemnification and/or Expense Advance sought in
the Enforcement Proceeding.
d. ATTORNEYS' FEES AND EXPENSES FOR ENFORCEMENT ACTION. In any
Enforcement Action, the Company shall hold harmless and indemnify Indemnitee
against all of Indemnitee's attorneys' fees and expenses in bringing, defending
and/or pursuing the Enforcement Action (including but not limited to attorneys'
fees at any stage, and on appeal); provided, however, that the Company shall not
be required to provide such indemnification for such fees and expenses if it is
Finally Adjudged that Indemnitee knew prior to commencement of
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the Enforcement Action that Indemnitee was not entitled to indemnification based
on any of clauses (i) through (v) of the first sentence of Section 1(a).
4. DEFENSE OF CLAIM
With respect to any Proceeding as to which Indemnitee has provided notice
to the Company pursuant to Section 1(f)(i):
a. The Company may participate therein at its own expense.
b. The Company (jointly with any other indemnifying party similarly
notified, if any) may assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to so assume the defense thereof, the Company shall not be liable to
Indemnitee under this Agreement for any legal fees or other expenses (other than
reasonable costs of investigation) subsequently incurred by Indemnitee in
connection with the defense thereof unless (i) the employment of counsel by
Indemnitee or the incurring of such expenses has been authorized by the Company,
(ii) Indemnitee shall have concluded that there is a reasonable possibility that
a conflict of interest could arise between the Company and Indemnitee in the
conduct of the defense of such Proceeding, which conflict of interest shall be
conclusively presumed to exist upon Indemnitee's delivery to the Company of a
written certification of such conclusion, or (iii) the Company shall not in fact
have employed counsel to assume the defense of such Proceeding, in each of which
cases the legal fees and other expenses of Indemnitee shall be at the expense of
the Company. The Company shall not be entitled to assume the defense of a
Proceeding brought by or on behalf of the Company or as to which Indemnitee
shall have reached the conclusion described in clause (ii) above.
c. The Company shall not be liable for any amounts paid in settlement
of any Proceeding effected without its written consent.
d. The Company shall not settle any Proceeding in any manner that
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent.
e. Neither the Company nor Indemnitee will unreasonably withhold its
or his or her consent to any proposed settlement of any Proceeding.
5. MAINTENANCE OF D&O INSURANCE
a. Subject to Section 5(c) below, during the period (the "Coverage
Period") beginning on the date of this Agreement and ending at the later of (i)
six (6) years following the time Indemnitee is no longer serving as either a
director or officer of the Company and/or one or more subsidiaries or any
Related Company, or (ii) at the end of such longer period during which
Indemnitee believes that a reasonable possibility of exposure to a Proceeding or
Damages persists (which extended period must be consented to by the Company,
such consent not to be unreasonably withheld), the Company shall maintain a
directors' and officers' liability insurance policy in full force and effect or
shall have purchased or otherwise provided for a run-off or tail policy or
endorsement to such existing policy ("D&O Insurance"), providing in all respects
coverage at least comparable to and in similar amounts, and with similar
exclusions, as that
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obtained by other similarly situated companies as determined in good faith by
any of the parties referenced in Section 1(g)(iii)(a) through (e).
b. Under all policies of D&O Insurance, Indemnitee shall during the
Coverage Period be named as an insured in such a manner as to provide Indemnitee
the same rights and benefits, subject to the same limitations, as are accorded
to the Company's directors or officers most favorably insured by such policy,
and each insurer under a policy of D&O Insurance shall be required to provide
Indemnitee written notice at least thirty (30) days prior to the effective date
of termination of the policy.
c. The Company shall have no obligation to obtain or maintain D&O
Insurance to the extent that such insurance is not reasonably available, the
premium costs for such insurance are disproportionate to the amount of coverage
provided, or the coverage provided by such insurance is so limited by exclusions
as to provide an insufficient benefit, such determination to be made by any of
the parties referenced in Section 1(g)(iii)(a) through (e).
d. It is the intention of the parties in entering into this Agreement
that the insurers under the D&O Insurance, if any, shall be obligated ultimately
to pay any claims by Indemnitee which are covered by D&O Insurance, and nothing
herein shall be deemed to diminish or otherwise restrict the Company's or
Indemnitee's right to proceed or collect against any insurers under D&O
Insurance or to give such insurers any rights against the Company or Indemnitee
under or with respect to this Agreement, including but not limited to any right
to be subrogated to the Company's or Indemnitee's rights hereunder, unless
otherwise expressly agreed to by the Company and Indemnitee in writing. The
obligation of such insurers to the Company and Indemnitee shall not be deemed
reduced or impaired in any respect by virtue of the provisions of this
Agreement.
e. No indemnification pursuant to this Agreement shall be provided by
the Company for Damages or Expense Advances that have been paid directly to
Indemnitee by an insurance carrier under a policy of D&O Insurance or other
insurance maintained by the Company.
f. 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 Indemnitee to
recover the same amounts from any insurer or other third person (other than
another person with indemnification rights against the Company substantially
similar those of Indemnitee under this Agreement). Indemnitee shall execute all
documents required and take all acts necessary to secure such rights and enable
the Company effectively to bring suit to enforce such rights.
6. PARTIAL INDEMNIFICATION; MUTUAL ACKNOWLEDGMENT; CONTRIBUTION
a. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Damages in connection with a Proceeding, but not for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion of such Damages to which Indemnitee is entitled.
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b. MUTUAL ACKNOWLEDGMENT. The Company and Indemnitee acknowledge that,
in certain instances, federal law or public policy may override applicable state
law and prohibit the Company from indemnifying Indemnitee under this Agreement
or otherwise. For example, the Company and Indemnitee acknowledge that the
Securities and Exchange Commission (the "SEC") has taken the position that
indemnification is not permissible for liabilities arising under certain federal
securities laws, and federal legislation prohibits indemnification for certain
ERISA violations. Furthermore, Indemnitee understands that the Company has
undertaken or may be required in the future to undertake with the SEC to submit
for judicial determination the issue of the Company's power to indemnify
Indemnitee in certain circumstances; all of the Company's obligations under this
Agreement will be subject to the requirements of any such undertaking required
by the SEC to be made by the Company.
c. CONTRIBUTION. If the indemnification provided under Sections 1, 2
and 6 is unavailable by reason of any of the circumstances specified in one or
more of clauses (i) through (iv) of the first sentence of Section 1(a) then, in
respect of any Proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such Proceeding), the Company shall contribute to the
amount of Damages (including attorneys' fees) actually and reasonably incurred
and paid or payable by Indemnitee in such proportion as is appropriate to
reflect (i) the relative benefits received by the Company and/or any of its
subsidiaries or any Related Company, or any of their affiliates other than
Indemnitee, on the one hand, and Indemnitee on the other from the transaction or
events from which such Proceeding arose or to which such Proceeding relates, and
(ii) the relative fault of the Company and/or any of its subsidiaries or any
Related Company, or any of their affiliates other than Indemnitee, on the one
hand, and of Indemnitee on the other in connection with the transaction or
events that resulted in such Damages, as well as any other relevant equitable
considerations. The relative fault of the Company and/or any of its subsidiaries
or any Related Company, or any of their affiliates other than Indemnitee, on the
one hand, and of Indemnitee on the other shall be determined by reference to,
among other things, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in
such Damages. The Company agrees that it would not be just and equitable if
contribution pursuant to this Section 6(c) were determined by pro rata
allocation or any other method of allocation that does not take account of the
foregoing equitable considerations.
7. [RELEASE OF CLAIMS RELATING TO OFFICER'S FAILURE TO DISCHARGE DUTIES. If
Indemnitee is an officer of the Company and/or one or more of its subsidiaries,
the indemnification and other rights and benefits provided to Indemnitee by this
Agreement shall apply fully with respect to any Proceeding in which it is
claimed or adjudicated that Indemnitee is liable to the Company and/or one or
more of its subsidiaries by reason of having failed to discharge the duties of
Indemnitee's office, and the Company hereby irrevocably releases all such claims
and liabilities, agrees to cause its subsidiaries to release all such claims,
and agrees to hold Indemnitee harmless with respect to any such claims;
provided, however, that the foregoing indemnification, release and hold harmless
obligations of the Company shall have no application with respect to claims by
and liabilities to the Company based upon actions or omissions described in one
or more of clauses (i) through (v) of the first sentence of Section 1(a).]
8. MISCELLANEOUS
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a. This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Delaware.
b. This Agreement shall be binding upon Indemnitee and upon the
Company, its successors and assigns, and shall inure to the benefit of
Indemnitee, Indemnitee's heirs, personal representatives and assigns and to the
benefit of the Company, its successors and assigns. 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.
c. Indemnitee's rights to indemnification and advancement of expenses
under this Agreement shall not be deemed exclusive of any other or additional
rights to which Indemnitee may be entitled under the Articles or Bylaws, any
vote of stockholders or disinterested directors, the Statute or otherwise,
whether as to actions or omissions in Indemnitee's official capacity or
otherwise.
d. Nothing in this Agreement shall confer upon Indemnitee the right to
continue to serve as a director and\or officer of the Company or any of its
subsidiaries or any Related Company. If Indemnitee is an officer of the Company,
then, unless otherwise expressly provided in a written employment agreement
between the Company and Indemnitee, the employment of Indemnitee with the
Company shall be terminable at will by either party. The indemnification and
release provided under this Agreement shall apply to any and all Proceedings,
notwithstanding that Indemnitee has ceased to be a director, officer, partner,
employee, trustee or agent of the Company, any of its subsidiaries or a Related
Company, and shall inure to the benefit of the heirs, executors and
administrators of Indemnitee.
e. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, then: (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such invalid, illegal or unenforceable provision 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
paragraphs of this Agreement containing any such invalid, illegal or
unenforceable provision, 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.
f. Any notices or communications to be given or required to be given
under this Agreement shall be given by personal delivery or registered airmail,
overnight courier, telex, facsimile or electronic mail at the following address
(or such other address as the relevant party provides the other party in writing
and referencing this Section 8(f)):
COMPANY:
ImaRx Therapeutics, Inc.
11
0000 Xxxx 00xx Xx.
Xxxxxx, XX 00000
(Fax) 1-520-[_____]
(Tel) 0-000-000-0000
Attn: ___________________________________
electronic mail: ________________________
INDEMNITEE:
_______________________________
_______________________________
_______________________________
(Fax) _______________
(Tel) _______________
electronic mail: ________________________
Notices and communications shall be deemed received by the addressee on the date
of delivery if delivered in person, on the third (3rd) day after mailing if
delivered by registered airmail, on the next business day after mailing if sent
by overnight courier, on the next business day if sent by telex or facsimile, or
upon confirmation of delivery when directed to the electronic mail address
described above if sent by electronic mail.
g. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
h. If Indemnitee has previously executed an indemnification agreement
with the Company, this Agreement supersedes such prior indemnification agreement
in its entirety.
i. This Agreement may be executed in two counterparts, each of which
shall be deemed an original, but both of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
effective as of the day and year first set forth above.
"Company" IMARX THERAPEUTICS, INC.
By
-------------------------------------
-------------------------------------
Its:
-----------------------------------
12
"Indemnitee" ----------------------------------------
----------------------------------------
[Type name]
13
EXHIBIT A
INDEMNIFICATION NOTICE
CHECK THE APPROPRIATE SPACE BELOW, AND PROVIDE A BRIEF DESCRIPTION OF THE
PROCEEDING AS REQUESTED BELOW:
____ Notice is hereby given by the undersigned, _________________________,
pursuant to Section 1(f)(i) of the Indemnification Agreement (the
"Agreement") dated ___________________________ between ImaRx
Therapeutics, Inc., a Delaware corporation (the "Company"), and the
undersigned, of the commencement of a Proceeding, as defined in the
Agreement. A brief description of the Proceeding is as follows:
____ If indemnification of particular Damages (as defined in the Agreement)
is being sought at this time, pursuant to Section 1(f)(ii) of the
Agreement, the undersigned hereby requests indemnification by the
Company under the terms of the Agreement with respect to the following
Damages incurred in connection with the Proceeding:
Dated: , .
---------------- ------
----------------------------------------
[Signature of Indemnitee]
----------------------------------------
[Type name]
EXHIBIT B
STATEMENT OF UNDERTAKING
STATE OF ______________________________)
) ss.
COUNTY OF _____________________________)
I, _____________________, being first duly sworn, do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnification Agreement
(the "Agreement") dated ___________________________ between ImaRx Therapeutics,
Inc., a Delaware corporation (the "Company"), and me.
2. I am requesting an Expense Advance, as defined in the Agreement.
3. I hereby undertake to repay the Expense Advance if and to the extent it
is Finally Adjudged (as defined in the Agreement) that I am not entitled under
the Agreement to be indemnified by the Company.
4. The expenses for which advancement is requested, and a brief description
of the underlying Proceeding (as defined in the Agreement), are as follows:
[ADD BRIEF DESCRIPTION OF EXPENSES AND PROCEEDING]
DATED: , .
---------------- ------
----------------------------------------
SUBSCRIBED AND SWORN TO before me this ____ day of ________________,
(Seal or stamp) ----------------------------------------
Notary Signature
----------------------------------------
Print/Type Name
Notary Public in and for the State of
[___], residing at _____________________
My appointment expires _________________
