IMARX THERAPEUTICS, INC. INDEMNIFICATION AGREEMENT
Exhibit 10.1
IMARX THERAPEUTICS, INC.
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 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 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 Committee of the Board delivers to Indemnitee a written notice contesting
Indemnitee’s indemnification claim (the “Contest Notice”), which Contest Notice 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
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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 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.
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).
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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 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 the Board’s Audit 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
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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 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
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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 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):
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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 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
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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.
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
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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
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,
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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. | ||||
0000 Xxxx 00xx Xx. | ||||
Xxxxxx, XX 00000 | ||||
(Fax) 1-520-[_____] | ||||
(Tel) 0-000-000-0000 | ||||
Attn: | ||||
electronic mail: | ||||
11
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: | ||||||||
“Indemnitee” | ||||||||
[Type name] |
12
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 | ||||||