EXHIBIT 10.12
FORM OF
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "AGREEMENT") dated the ____ day of
_______, _____, by and between BioNumerik Pharmaceuticals, Inc., a Texas
corporation (the "COMPANY"), and ____________, an individual ("INDEMNITEE").
RECITALS
A. Competent and experienced persons are reluctant to serve or to continue
to serve as directors and officers of corporations or in other capacities unless
they are provided with adequate protection through insurance or indemnification
(or both) against claims against them arising out of their service and
activities on behalf of the corporation.
B. The current uncertainties relating to the availability of adequate
insurance have increased the difficulty for corporations of attracting and
retaining competent and experienced persons to serve in such capacity.
C. The Board of Directors of the Company (the "BOARD OF DIRECTORS") has
determined that the continuation of present trends in litigation will make it
more difficult to attract and retain competent and experienced persons to serve
as directors and officers of the Company, that this situation is detrimental to
the best interests of the Company's shareholders and that the Company should act
to assure such persons that there will be increased certainty of adequate
protection in the future.
D. As a supplement to and in the furtherance of the Company's Articles of
Incorporation, as amended (the "ARTICLES"), and Bylaws, as amended (the
"BYLAWS"), it is reasonable, prudent, desirable and necessary for the Company
contractually to obligate itself to indemnify, and to pay in advance expenses on
behalf of, officers and directors to the fullest extent permitted by law so that
they will serve or continue to serve the Company free from concern that they
will not be so indemnified and that their expenses will not be so paid in
advance;
E. This Agreement is not a substitute for, nor does it diminish or
abrogate any rights of Indemnitee under, the Articles and the Bylaws or any
resolutions adopted pursuant thereto (including any contractual rights of
Indemnitee that may exist).
F. Indemnitee is a director and/or officer of the Company and his or her
willingness to continue to serve in such capacity is predicated, in substantial
part, upon the Company's willingness to indemnify him or her to the fullest
extent permitted by the laws of the State of Texas and upon the other
undertakings set forth in this Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, the Company and Indemnitee hereby agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
Capitalized terms used but not otherwise defined in this Agreement have
the meanings set forth below:
"CHANGE OF CONTROL" means the occurrence of any of the following events:
(a) The acquisition after the date of this Agreement by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 15% or more of either the then-outstanding shares of common stock of the
Company (the "OUTSTANDING COMPANY COMMON STOCK") or the combined voting power of
the then-outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "OUTSTANDING COMPANY VOTING SECURITIES");
provided, however, that none of the following acquisitions will constitute a
Change of Control:
(i) Any acquisition directly from the Company or any Controlled
Affiliate of the Company;
(ii) Any acquisition by the Company or any Controlled Affiliate of
the Company;
(iii) Any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any Controlled Affiliate
of the Company;
(iv) Any acquisition that is approved by at least a majority of the
Incumbent Directors;
(v) Any acquisition by Xx. Xxxxxxxxx X. Xxxxxxxx, or any entity or
person that may be an affiliate of Xx. Xxxxxxxx or his heirs or any trust
or foundation to which he has transferred or may transfer any Outstanding
Company Common Stock or Outstanding Company Voting Securities; or
(vi) Any acquisition by Xx. Xxxxx X. Xxxxxxxxx, or any entity or
person that may be an affiliate of Xx. Xxxxxxxxx or his heirs or any trust
or foundation to which he has transferred or may transfer any Outstanding
Company Common Stock or Outstanding Company Voting Securities; or
(vii) Any acquisition by any entity or its security holders pursuant
to a transaction that complies with clauses (i), (ii) and (iii) of
paragraph (c) of this definition.
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(b) Individuals who, as of the date of this Agreement, constitute the
Board of Directors (the "INCUMBENT DIRECTORS") cease for any reason to
constitute at least a majority of the Board of Directors; provided, however,
that any individual who becomes a director of the Company subsequent to the date
of this Agreement and whose election or appointment by the Board of Directors or
nomination for election by the Company's shareholders was approved by a vote of
at least a majority of the then Incumbent Directors will be considered as an
Incumbent Director, unless such individual's initial assumption of office occurs
as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a person or entity other than the
Company;
(c) Consummation of a reorganization, merger, statutory share exchange or
consolidation or similar corporate transaction involving the Company or any of
its Subsidiaries, a sale or other disposition of all or substantially all of the
assets of the Company or an acquisition of assets or stock of another entity by
the Company or any of its Subsidiaries (each a "BUSINESS COMBINATION") unless,
in each case, following such Business Combination (i) all or substantially all
of the individuals and entities that were the beneficial owners of the
Outstanding Common Stock and Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or indirectly,
more than 50% of the then-outstanding shares of common stock and the combined
voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including a corporation that, as a
result of such Business Combination, owns the Company or all or substantially
all of the Company's assets either directly or through one or more Subsidiaries)
in substantially the same proportions as their ownership immediately prior to
such Business Combination of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities, as the case may be, (ii) no person or
entity (excluding (A) any entity resulting from such Business Combination or (B)
any employee benefit plan (or related trust) of the Company or corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly 15% or more of either the then- outstanding shares of common stock of
the corporation resulting from such Business Combination or the combined voting
power of the then-outstanding voting securities of such corporation, except to
the extent that such ownership existed prior to such Business Combination, and
(iii) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board of Directors, providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.
"CORPORATE STATUS" means the status of a person who is or was a director,
officer, employee, partner, member, manager, trustee, fiduciary or agent of the
Company or of any other Enterprise which such person is or was serving at the
request of the Company. In addition to any service at the actual request of the
Company, Indemnitee will be deemed, for purposes of this Agreement, to be
serving or to have served at the request of the Company as a director, officer,
employee, partner, member, manager, trustee, fiduciary or agent of another
Enterprise if Indemnitee is or was serving as a director, officer, employee,
partner, member, manager,
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fiduciary, trustee or agent of such Enterprise and (i) such Enterprise is or at
the time of such service was a Controlled Affiliate, (ii) such Enterprise is or
at the time of such service was an employee benefit plan (or related trust)
sponsored or maintained by the Company or a Controlled Affiliate or (ii) the
Company or a Controlled Affiliate directly or indirectly caused Indemnitee to be
nominated, elected, appointed, designated, employed, engaged or selected to
serve in such capacity.
"CONTROLLED AFFILIATE" means any corporation, limited liability company,
partnership, joint venture, trust or other Enterprise, whether or not for
profit, that is directly or indirectly controlled by the Company. For purposes
of this definition, the term "control" means the possession, directly or
indirectly, of the power to direct, or cause the direction of, the management or
policies of an Enterprise, whether through the ownership of voting securities,
through other voting rights, by contract or otherwise; provided, however, that
direct or indirect beneficial ownership of capital stock or other interests in
an Enterprise entitling the holder to cast 30% or more of the total number of
votes generally entitled to be cast in the election of directors (or persons
performing comparable functions) of such Enterprise will be deemed to constitute
"control" for purposes of this definition.
"DISINTERESTED DIRECTOR" means a director of the Company who is not and
was not a party to the Proceeding in respect of which indemnification is sought
by Indemnitee.
"ENTERPRISE" means the Company and any other corporation, partnership,
limited liability company, joint venture, employee benefit plan, trust or other
entity or other enterprise of which Indemnitee is or was serving at the request
of the Company in a Corporate Status.
"EXPENSES" means all attorney's fees, disbursements and retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, fax
transmission charges, secretarial services, delivery service fees and all other
disbursements or expenses paid or incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding, or in
connection with seeking indemnification under this Agreement. Expenses will also
include Expenses paid or incurred in connection with any appeal resulting from
any Proceeding, including the premium, security for and other costs relating to
any appeal bond or its equivalent. Expenses, however, will not include amounts
paid in settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.
"INDEPENDENT COUNSEL" means an attorney or firm of attorneys that is
experienced in matters of corporation law and neither currently is, nor in the
past five (5) years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other than with respect
to matters concerning the Indemnitee under this Agreement and/or the
indemnification provisions of the Articles or Bylaws, or of other indemnitees
under similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Counsel" does not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's rights under this Agreement.
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"LOSSES" means any loss, liability, judgments, damages, amounts paid in
settlement, fines (including excise taxes and penalties assessed with respect to
employee benefit plans), penalties (whether civil, criminal or otherwise) and
all interest, assessments and other charges paid or payable in connection with
or in respect of any of the foregoing.
"PROCEEDING" means any threatened, pending or completed action, suit,
claim, demand, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, including any and all appeals, whether brought by or in
the right of the Company or otherwise, whether civil, criminal, administrative
or investigative, whether formal or informal, and in each case whether or not
commenced prior to the date of this Agreement, in which Indemnitee was, is or
will be involved as a party or otherwise, by reason of or relating to
Indemnitee's Corporate Status and by reason of or relating to either (i) any
action or alleged action taken by Indemnitee (or failure or alleged failure to
act) or of any action or alleged action (or failure or alleged failure to act)
on Indemnitee's part, while acting in his or her Corporate Status or (ii) the
fact that Indemnitee is or was serving at the request of the Company as
director, officer, employee, partner, member, manager, trustee, fiduciary or
agent of another Enterprise, in each case whether or not serving in such
capacity at the time any Loss or Expense is paid or incurred for which
indemnification or advancement of Expenses can be provided under this Agreement,
except one initiated by Indemnitee to enforce his or her rights under this
Agreement. For purposes of this definition, the term "threatened" will be deemed
to include Indemnitee's good faith belief that a claim or other assertion may
lead to institution of a Proceeding.
References to "SERVING AT THE REQUEST OF THE COMPANY" include any service
as a director, officer, employee or agent of the Company which imposes duties
on, or involves services by, such director, officer, employee or agent with
respect to any employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he or she reasonably believed to
be in the best interests of the participants and beneficiaries of an employee
benefit plan will be deemed to have acted in a manner "NOT OPPOSED TO THE BEST
INTERESTS OF THE COMPANY" as referred to under applicable law or in this
Agreement.
ARTICLE 2
SERVICES TO THE COMPANY
2.1 SERVICES TO THE COMPANY. Indemnitee agrees to continue to serve as a
[director][officer] of the Company. Indemnitee may at any time and for any
reason resign from such position (subject to any other contractual obligation or
any obligation imposed by operation of law), in which event the Company will
have no obligation under this Agreement to continue Indemnitee in such position.
This Agreement will not be construed as giving Indemnitee any right to be
retained in the employ of the Company (or any other Enterprise).
ARTICLE 3
INDEMNIFICATION
3.1 COMPANY INDEMNIFICATION. Except as otherwise provided in this Article
3, if Indemnitee was, is or becomes a party to, or was or is threatened to be
made a party to, or was or is otherwise involved in, any Proceeding, the Company
will indemnify and hold harmless
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Indemnitee to the fullest extent permitted by the Articles, Bylaws and
applicable law, as the same exists or may hereafter be amended, interpreted or
replaced (but in the case of any such amendment, interpretation or replacement,
only to the extent that such amendment, interpretation or replacement permits
the Company to provide broader indemnification rights than were permitted prior
thereto), against any and all Expenses and Losses, and any federal, state, local
or foreign taxes imposed as a result of the actual or deemed receipt of any
payments under this Agreement, that are actually and reasonably paid or incurred
by Indemnitee in connection with such Proceeding. For purposes of this
Agreement, the meaning of the phrase "TO THE FULLEST EXTENT PERMITTED BY LAW"
will include to the fullest extent permitted by Article 2.02-1 of the Texas
Business Corporation Act ("TBCA") or any section that replaces or succeeds
Article 2.02-1 of the TBCA with respect to such matters. THE INDEMNIFICATION
PROVIDED TO INDEMNITEE IN THIS AGREEMENT WILL BE PROVIDED WHETHER OR NOT THE
NEGLIGENCE OR GROSS NEGLIGENCE OF INDEMNITEE IS ALLEGED OR PROVEN.
3.2 MANDATORY INDEMNIFICATION IF INDEMNITEE IS WHOLLY OR PARTLY
SUCCESSFUL. Notwithstanding any other provision of this Agreement (other than
Section 6.9), to the extent that Indemnitee has been successful, on the merits
or otherwise, in defense of any Proceeding or any part thereof, the Company will
indemnify Indemnitee against all Expenses that are paid or incurred by
Indemnitee in connection therewith. If Indemnitee is not wholly successful in
such Proceeding, but is successful, on the merits or otherwise, as to one or
more but fewer than all claims, issues or matters in such Proceeding, the
Company will indemnify and hold harmless Indemnitee against all Expenses paid or
incurred by Indemnitee in connection with each successfully resolved claim,
issue or matter on which Indemnitee was successful. For purposes of this Section
3.2, the termination of any Proceeding, or any claim, issue or matter in such
Proceeding, by dismissal with or without prejudice will be deemed to be a
successful result as to such Proceeding, claim, issue or matter.
3.3 INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
or her Corporate Status, a witness in any Proceeding to which Indemnitee is not
a party, the Company will indemnify Indemnitee against all Expenses paid or
incurred by Indemnitee on his or her behalf in connection therewith.
3.4 EXCLUSIONS. Notwithstanding any other provision of this Agreement, the
Company will not be obligated under this Agreement to provide indemnification in
connection with the following:
(a) Any Proceeding (or part of any Proceeding) initiated or brought
voluntarily by Indemnitee against the Company or its directors, officers,
employees or other indemnities, unless the Board of Directors has
authorized or consented to the initiation of the Proceeding (or such part
of any Proceeding); provided, however, that nothing in this Section 3.4(a)
shall limit the right of Indemnitee to be indemnified under Section 8.4.
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(b) For an accounting of profits made from the purchase and sale (or
sale and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Exchange Act or any similar successor
statute.
ARTICLE 4
ADVANCEMENT OF EXPENSES
4.1 EXPENSE ADVANCES. Except as set forth in Section 4.2, the Company
will, if requested by Indemnitee, advance, to the fullest extent permitted by
law, to Indemnitee (hereinafter an "EXPENSE ADVANCE") any and all Expenses paid
or incurred by Indemnitee in connection with any Proceeding (whether prior to or
after its final disposition). Indemnitee's right to each Expense Advance will
not be subject to the satisfaction of any standard of conduct and will be made
without regard to Indemnitee's ultimate entitlement to indemnification under the
other provisions of this Agreement, or under provisions of the Articles or
Bylaws or otherwise. Each Expense Advance will be unsecured and interest free
and will be made by the Company without regard to Indemnitee's ability to repay
the Expense Advance; provided, however, that, if applicable law requires, an
Expense Advance will be made only upon delivery to the Company of an undertaking
(hereinafter an "UNDERTAKING"), by or on behalf of Indemnitee, to repay such
Expense Advance if it is ultimately determined, by final decision by a court or
arbitrator, as applicable, from which there is no further right to appeal, that
Indemnitee is not entitled to be indemnified for such Expenses under the
Articles, Bylaws, the TBCA, this Agreement or otherwise. An Expense eligible for
an Expense Advance will include any and all reasonable Expenses incurred
pursuing an action to enforce the right of advancement provided for in this
Article 4, including Expenses incurred preparing and forwarding statements to
the Company to support the Expense Advances claimed.
4.2 EXCLUSIONS. Indemnitee will not be entitled to any Expense Advance in
connection with any of the matters for which indemnity is excluded pursuant to
Section 3.4.
4.3 TIMING. An Expense Advance pursuant to Section 4.1 will be made within
ten days after the receipt by the Company of a written statement or statements
from Indemnitee requesting such Expense Advance (which statement or statements
will include, if requested by the Company, reasonable detail underlying the
Expenses for which the Expense Advance is requested), whether such request is
made prior to or after final disposition of such Proceeding. Such request must
be accompanied by or preceded by the Undertaking, if then required by the TBCA
or any other applicable law.
ARTICLE 5
CONTRIBUTION IN THE EVENT OF JOINT LIABILITY
5.1 CONTRIBUTION BY COMPANY. To the fullest extent permitted by law, if
the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, will
contribute to the amount of Expenses and Losses incurred or paid by Indemnitee
in connection with any Proceeding in proportion to the relative benefits
received by the Company and all officers, directors and employees of the Company
other than Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such Proceeding), on the one hand, and Indemnitee, on the other hand,
from
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the transaction from which such Proceeding arose; provided, however, that
the proportion determined on the basis of relative benefit may, to the extent
necessary to conform to law, be further adjusted by reference to the relative
fault of the Company and all officers, directors and employees of the Company
other than Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such Proceeding), on the one hand, and Indemnitee, on the other hand,
in connection with the events that resulted in such Expenses and Losses, as well
as any other equitable considerations which applicable law may require to be
considered. The relative fault of the Company and all officers, directors and
employees of the Company other than Indemnitee who are jointly liable with
Indemnitee (or would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, will be determined by reference to, among other
things, the degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability is primary or
secondary, and the degree to which their conduct was active or passive.
5.2 INDEMNIFICATION FOR CONTRIBUTION CLAIMS BY OTHERS. To the fullest
extent permitted by law, the Company will fully indemnify and hold Indemnitee
harmless from any claims of contribution which may be brought by other officers,
directors or employees of the Company who may be jointly liable with Indemnitee
for any Loss or Expense arising from a Proceeding.
ARTICLE 6
PROCEDURES AND PRESUMPTIONS FOR THE
DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
6.1 NOTIFICATION OF CLAIMS; REQUEST FOR INDEMNIFICATION. Indemnitee agrees
to notify promptly the Company in writing of any claim made against Indemnitee
for which indemnification will or could be sought under this Agreement;
provided, however, that a delay in giving such notice will not deprive
Indemnitee of any right to be indemnified under this Agreement unless, and then
only to the extent that, the Company did not otherwise learn of the Proceeding
and such delay is materially prejudicial to the Company's ability to defend such
Proceeding; and, provided, further, that notice will be deemed to have been
given without any action on the part of Indemnitee in the event the Company is a
party to the same Proceeding. The omission to notify the Company will not
relieve the Company from any liability for indemnification which it may have to
Indemnitee otherwise than under this Agreement. Indemnitee may deliver to the
Company a written request to have the Company indemnify and hold harmless
Indemnitee in accordance with this Agreement. Subject to Section 6.9, such
request may be delivered from time to time and at such time(s) as Indemnitee
deems appropriate in his or her sole discretion. Following such a written
request for indemnification, Indemnitee's entitlement to indemnification shall
be determined according to Section 6.2. The Secretary of the Company will,
promptly upon receipt of such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested indemnification. The Company
will be entitled to participate in any Proceeding at its own expense.
6.2 DETERMINATION OF RIGHT TO INDEMNIFICATION. The Corporation may provide
indemnification or contribution to Indemnitee under this Agreement without
making the determination described in this Section 6.2, unless such a
determination is required by applicable law. Upon written request by Indemnitee
for indemnification pursuant to Section 6.1 hereof or
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contribution or indemnification pursuant to Article 5 hereof with respect to any
Proceeding, a determination with respect to Indemnitee's entitlement thereto
will be made by one of the following, at the election of Indemnitee as: (1) so
long as there are Disinterested Directors with respect to such Proceeding, a
majority vote of the Disinterested Directors, even though less than a quorum of
the Board of Directors, (2) so long as there are Disinterested Directors with
respect to such Proceeding, a committee of such Disinterested Directors
designated by a majority vote of such Disinterested Directors, even though less
than a quorum of the Board of Directors or (3) Independent Counsel in a written
opinion delivered to the Board of Directors, a copy of which will also be
delivered to Indemnitee. The election by Indemnitee to use a particular person,
persons or entity to make such determination is to be included in the written
request for indemnification submitted by Indemnitee (and if no election is made
in the request it will be assumed that Indemnitee has elected the Independent
Counsel to make such determination). The person, persons or entity chosen to
make a determination under this Agreement of the Indemnitee's entitlement to
indemnification and/or contribution will act reasonably and in good faith in
making such determination. Notwithstanding anything herein to the contrary, the
rights of indemnification and to receive Expense Advances and contribution as
provided by this Agreement will be deemed severable and the unavailability of
such rights or ineligibility of another party to receive indemnification,
Expense Advances or contribution pursuant to any separate agreement will not
affect the availability of such rights or the Indemnitee's eligibility to
receive indemnification, Expense Advances or contribution as provided by this
Agreement.
6.3 SELECTION OF INDEPENDENT COUNSEL. If the determination of entitlement
to indemnification pursuant to Section 6.2 or contribution or indemnification
pursuant to Article 5 will be made by an Independent Counsel, the Independent
Counsel will be selected as provided in this Section 6.3. The Independent
Counsel will be selected by Indemnitee (unless Indemnitee requests that such
selection be made by the Board of Directors, in which event the immediately
following sentence will apply) and Indemnitee will give written notice to the
Company advising it of the identity of the Independent Counsel so selected If
the Independent Counsel is selected by the Board of Directors, the Company will
give written notice to Indemnitee advising him or her of the identity of the
Independent Counsel so selected. In either event, Indemnitee or the Company, as
the case may be, may, within ten days after such written notice of selection is
given, deliver to the Company or to Indemnitee, as the case may be, a written
objection to such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" as defined in this Agreement, and
the objection will set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so selected will act
as Independent Counsel. If a written objection is made and substantiated, the
Independent Counsel selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that such objection
is without merit. If, within 30 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 6.1, no Independent Counsel is
selected, or an Independent Counsel for which an objection thereto has been
properly made remains unresolved, either the Company or Indemnitee may petition
an appropriate court of the State of Texas or any other court of competent
jurisdiction for resolution of any objection which has been made by the Company
or Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such
other person as the court may designate, and the person with respect to whom all
objections are so resolved or the person so appointed will act as Independent
Counsel under
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Section 6.2. The Company will pay any and all fees and expenses incurred by such
Independent Counsel in connection with acting pursuant to Section 6.2 hereof,
and the Company will pay all fees and expenses incident to the procedures of
this Section 6.3, regardless of the manner in which such Independent Counsel was
selected or appointed.
6.4 BURDEN OF PROOF. In making a determination with respect to entitlement
to indemnification or contribution hereunder, the person, persons or entity
making such determination will presume that Indemnitee is entitled to
indemnification or contribution under this Agreement. Anyone seeking to overcome
this presumption will have the burden of proof and the burden of persuasion, by
clear and convincing evidence. In making a determination with respect to
entitlement to indemnification or contribution hereunder which under this
Agreement, the Articles, Bylaws or applicable law requires a determination of
Indemnitee's good faith and/or whether Indemnitee acted in a manner which he or
she reasonably believed to be in or not opposed to the best interests of the
Company, the person, persons or entity making such determination will presume
that Indemnitee has at all times acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Company. Anyone seeking to overcome this presumption will have the burden of
proof and the burden of persuasion, by clear and convincing evidence. Indemnitee
will be deemed to have acted in good faith if Indemnitee's action with respect
to a particular Enterprise is based on the records or books of account of such
Enterprise, including financial statements, or on information supplied to
Indemnitee by the officers of such Enterprise in the course of their duties, or
on the advice of legal counsel for such Enterprise or on information or records
given or reports made to such Enterprise by an independent certified public
accountant or by an appraiser or other expert selected by such Enterprise;
provided, however this sentence will not be deemed to limit in any way the other
circumstances in which Indemnitee may be deemed to have met such standard of
conduct. In addition, the knowledge and/or actions, or failure to act, of any
other director, officer, agent or employee of such Enterprise will not be
imputed to Indemnitee for purposes of determining the right to indemnification
or contribution under this Agreement.
6.5 NO PRESUMPTION IN ABSENCE OF A DETERMINATION OR AS RESULT OF AN
ADVERSE DETERMINATION; PRESUMPTION REGARDING SUCCESS. Neither the failure of any
person, persons or entity chosen to make a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular
belief to make such determination, nor an actual determination by such person,
persons or entity that Indemnitee has not met such standard of conduct or did
not have such belief, prior to or after the commencement of legal proceedings by
Indemnitee to secure a judicial determination that Indemnitee should be
indemnified under this Agreement under applicable law, will be a defense to
Indemnitee's claim or create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any particular belief. In
addition, the termination of any Proceeding by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, will not create a presumption that Indemnitee did
not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by this
Agreement or applicable law. In the event that any Proceeding to which
Indemnitee is a party is resolved in any manner other than by final adverse
judgment (as to which all rights of appeal therefrom have been exhausted or
lapsed) against Indemnitee (including, without limitation, settlement of such
Proceeding with or without payment of money or other consideration) it will be
presumed that Indemnitee has been successful on the merits or otherwise in such
Proceeding.
10
Anyone seeking to overcome this presumption will have the burden of proof and
the burden of persuasion, by clear and convincing evidence.
6.6 TIMING OF DETERMINATION. The Company will use its reasonable best
efforts to cause any determination required to be made pursuant to Section 6.2
to be made as promptly as practicable after Indemnitee has submitted a written
request for indemnification pursuant to Section 6.1 or contribution or
indemnification pursuant to Article 5. If the person, persons or entity chosen
to make a determination does not make such determination within 30 days after
the later of the date (a) the Company receives Indemnitee's request for
indemnification pursuant to Section 6.1 or contribution or indemnification
pursuant to Article 5 and (b) on which an Independent Counsel is selected
pursuant to Section 6.3, if applicable (and all objections to such person, if
any, have been resolved), the requisite determination of entitlement to
indemnification or contribution will be deemed to have been made and Indemnitee
will be entitled to such indemnification or contribution, so long as (i)
Indemnitee has fulfilled his or her obligations pursuant to Section 6.8 and (ii)
such indemnification is not prohibited under applicable law; provided, however,
that such 30 day period may be extended for a reasonable time, not to exceed an
additional 15 days, if the person, persons or entity making the determination
with respect to entitlement to indemnification or contribution in good faith
requires such additional time for the obtaining of or evaluating of
documentation and/or information relating thereto.
6.7 TIMING OF PAYMENTS. All payments of Expenses, including any Expense
Advance, and other amounts by the Company to the Indemnitee pursuant to this
Agreement will be made as soon as practicable after a written request or demand
therefor by Indemnitee is presented to the Company, but in no event later than
fifteen (15) days after (i) such demand is presented or (ii) such later date as
a determination of entitlement to indemnification or contribution is made in
accordance with Section 6.6, if applicable; provided, however, that an Expense
Advance will be made within the time provided in Section 4.3 hereof.
6.8 COOPERATION. Indemnitee will cooperate with the person, persons or
entity making a determination with respect to Indemnitee's entitlement to
indemnification or contribution, including providing to such person, persons or
entity, upon reasonable advance request, any documentation or information which
is not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
Expenses incurred by Indemnitee in so cooperating with the person, persons or
entity making such determination will be borne by the Company (irrespective of
the determination as to Indemnitee's entitlement to indemnification or
contribution) and the Company will indemnify Indemnitee therefor and will hold
Indemnitee harmless therefrom.
6.9 TIME FOR SUBMISSION OF REQUEST. Indemnitee will be required to submit
any request for Indemnification pursuant to this Article 6 or contribution or
indemnification pursuant to Article 5 within a reasonable time, not to exceed
two years, after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere (or its equivalent) or other
full or partial final determination or disposition of the Proceeding (with the
latest date of the occurrence of any such event to be considered the
commencement of the two year period).
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ARTICLE 7
LIABILITY INSURANCE
7.1 COMPANY INSURANCE. Subject to Section 7.3, the Company will obtain and
maintain a policy or policies of insurance with one or more reputable insurance
companies providing Indemnitee with coverage in such amount as will be
determined by the Board of Directors for Losses and Expenses paid or incurred by
Indemnitee as a result of acts or omissions of Indemnitee in his or her
Corporate Status, and to ensure the Company's performance of its indemnification
obligations under this Agreement; provided, however, in all policies of director
and officer liability insurance obtained by the Company, Indemnitee will be
named as an insured party in such manner as to provide Indemnitee with the same
rights and benefits as are afforded to the most favorably insured directors or
officers, as applicable, of the Company under such policies. Any reductions to
the amount of director and officer liability insurance coverage maintained by
the Company as of the date hereof will be subject to the approval of the Board
of Directors.
7.2 NOTICE TO INSURERS. If, at the time of receipt by the Company of a
notice from any source of a Proceeding as to which Indemnitee is a party or
participant, the Company will give prompt notice of such Proceeding to the
insurers in accordance with the procedures set forth in the respective policies,
and the Company will provide Indemnitee with a copy of such notice and copies of
all subsequent correspondence between the Company and such insurers related
thereto. The Company will thereafter take all necessary or desirable actions to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such Proceeding in accordance with the terms of such policies.
7.3 INSURANCE NOT REQUIRED. Notwithstanding Section 7.1, the Company will
have no obligation to obtain or maintain the insurance contemplated by Section
7.1 if the Board of Directors determines in good faith that such insurance is
not reasonably available, if the premium costs for such insurance are
disproportionately high compared to the amount of coverage provided, or if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit. The Company will promptly notify Indemnitee of any such
determination not to provide insurance coverage.
ARTICLE 8
REMEDIES OF INDEMNITEE
8.1 ACTION BY INDEMNITEE. In the event that (i) a determination is made
pursuant to Article 6 of this Agreement that Indemnitee is not entitled to
indemnification or contribution under this Agreement, (ii) an Expense Advance is
not timely made pursuant to Section 4.3 of this Agreement, (iii) no
determination of entitlement to indemnification or contribution is made within
the applicable time periods specified in Section 6.6 or (iv) payment of
indemnified amounts or amounts in contribution is not made within the applicable
time periods specified in Section 6.7, Indemnitee will be entitled to an
adjudication in an appropriate court of the State of Texas, or in any other
court of competent jurisdiction, of his or her entitlement to such
indemnification, payment of an Expense Advance or contribution. Alternatively,
Indemnitee, at Indemnitee's option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. The
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provisions of Texas law (without regard to its conflict of laws rules) will
apply to any such arbitration. The Company will not oppose Indemnitee's right to
seek any such adjudication or award in arbitration.
8.2 DE NOVO REVIEW IF PRIOR ADVERSE DETERMINATION. In the event that a
determination is made pursuant to Article 6 that Indemnitee is not entitled to
indemnification or contribution, any judicial proceeding or arbitration
commenced pursuant to this Article 8 will be conducted in all respects as a de
novo trial or arbitration, as applicable, on the merits and Indemnitee will not
be prejudiced by reason of that adverse determination. In any judicial
proceeding or arbitration commenced pursuant to this Article 8, Indemnitee will
be presumed to be entitled to indemnification and/or contribution under this
Agreement, the Company will have the burden of proving Indemnitee is not
entitled to indemnification or contribution and the Company may not refer to or
introduce evidence of any determination pursuant to Article 6 adverse to
Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or
arbitration pursuant to this Article 8, Indemnitee will not be required to
reimburse the Company for any Expense Advance made pursuant to Article 4 until a
final determination is made with respect to Indemnitee's entitlement to
indemnification and/or contribution (as to which all rights of appeal have been
exhausted or lapsed).
8.3 COMPANY BOUND BY FAVORABLE DETERMINATION BY REVIEWING PARTY. If a
determination is made that Indemnitee is entitled to indemnification pursuant to
Article 6 or contribution or indemnification pursuant to Article 5, the Company
will be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Article 8, absent (i) a misstatement by Indemnitee of
a material fact or an omission of a material fact necessary to make Indemnitee's
statements in connection with the request for indemnification or contribution
not materially misleading or (ii) a prohibition of such indemnification under
law.
8.4 COMPANY BEARS EXPENSES IF INDEMNITEE SEEKS ADJUDICATION. In the event
that Indemnitee, pursuant to this Article 8, seeks a judicial adjudication or
arbitration of his or her rights under, or to recover damages for breach of,
this Agreement, any other agreement for indemnification, the indemnification or
advancement of expenses provisions in the Articles or Bylaws, payment of
Expenses in advance or contribution hereunder or to recover under any director
and officer liability insurance policies maintained by the Company, the Company
will, to the fullest extent permitted by law, indemnify and hold harmless
Indemnitee against any and all Expenses which are paid or incurred by Indemnitee
in connection with such judicial adjudication or arbitration, regardless of
whether Indemnitee ultimately is determined to be entitled to such
indemnification, payment of Expenses in advance or contribution or insurance
recovery. In addition, if requested by Indemnitee, the Company will (within ten
days after receipt by the Company of the written request therefor), pay as an
Expense Advance such Expenses, to the fullest extent permitted by law.
8.5 COMPANY BOUND BY PROVISIONS OF THIS AGREEMENT. The Company will be
precluded from asserting in any judicial or arbitration proceeding commenced
pursuant to this Article 8 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and will stipulate in any such
judicial or arbitration proceeding that the Company is bound by all the
provisions of this Agreement.
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ARTICLE 9
NON-EXCLUSIVITY, SUBROGATION; NO DUPLICATIVE PAYMENTS;
MORE FAVORABLE TERMS
9.1 NON-EXCLUSIVITY. The rights of indemnification and to receive Expense
Advances and contribution as provided by this Agreement will not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Articles, the Bylaws, any agreement, a vote of
shareholders, a resolution of the directors or otherwise. To the extent
Indemnitee otherwise would have any greater right to indemnification or payment
of any advancement of Expenses or contribution under any other provisions under
applicable law, the Articles, Bylaws, any agreement, vote of shareholders, a
resolution of directors or otherwise, Indemnitee will be entitled under this
Agreement to such greater right. No amendment, alteration or repeal of this
Agreement or of any provision hereof limits or restricts any right of Indemnitee
under this Agreement in respect of any action taken or omitted by such
Indemnitee prior to such amendment, alteration or repeal. To the extent that a
change in the TBCA, whether by statute or judicial decision, permits greater
indemnification, advancement of expenses or contribution than would be afforded
currently under the Articles, Bylaws and this Agreement, it is the intent of the
parties hereto that Indemnitee enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy will be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, will not prevent the
concurrent assertion or employment of any other right or remedy.
9.2 SUBROGATION. In the event of any payment by the Company under this
Agreement, the Company will be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee with respect thereto and Indemnitee will
execute all papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights (it being understood that all of Indemnitee's
reasonable Expenses related thereto will be borne by the Company).
9.3 NO DUPLICATIVE PAYMENTS. The Company will not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable (or any Expense
for which advancement is provided) hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise. The Company's obligation to indemnify
or advance Expenses hereunder to Indemnitee in respect of Proceedings relating
to Indemnitee's service at the request of the Company as a director, officer,
employee, partner, member, manager, trustee, fiduciary or agent of any other
Enterprise will be reduced by any amount Indemnitee has actually received as
indemnification or advancement of Expenses from such other Enterprise.
9.4 MORE FAVORABLE TERMS. In the event the Company enters into an
indemnification agreement with another officer or director, as the case may be,
containing terms more favorable to the indemnitee thereof than the terms
contained herein (and absent special circumstances justifying such more
favorable terms), Indemnitee will be afforded the benefit of such more favorable
terms and such more favorable terms will be deemed incorporated by reference
herein as if set forth in full herein. As promptly as practicable following the
execution
14
thereof, the Company will (a) send a copy of the agreement containing more
favorable terms to Indemnitee, and (b) prepare, execute and deliver to
Indemnitee an amendment to this Agreement containing such more favorable terms.
ARTICLE 10
DEFENSE OF PROCEEDINGS
10.1 COMPANY ASSUMING THE DEFENSE. Subject to Section 10.3 below, in the
event the Company is obligated to pay in advance the Expenses of any Proceeding
pursuant to Article 4, the Company will be entitled, by written notice to
Indemnitee, to assume the defense of such Proceeding, with counsel approved by
Indemnitee, which approval will not be unreasonably withheld. The Company will
identify the counsel it proposes to employ in connection with such defense as
part of the written notice sent to Indemnitee notifying Indemnitee of the
Company's election to assume such defense, and Indemnitee will be required,
within ten days following Indemnitee's receipt of such notice, to inform the
Company of its approval of such counsel or, if it has objections, the reasons
therefor. If such objections cannot be resolved by the parties, the Company will
identify alternative counsel, which counsel will also be subject to approval by
Indemnitee in accordance with the procedure described in the prior sentence.
10.2 RIGHT OF INDEMNITEE TO EMPLOY COUNSEL. Following approval of counsel
by Indemnitee pursuant to Section 10.1 and retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this Agreement for
any fees and expenses of counsel subsequently incurred by Indemnitee with
respect to the same Proceeding; provided, however, that (a) Indemnitee has the
right to employ counsel in any such Proceeding at Indemnitee's expense and (b)
the Company will be required to pay the fees and expenses of Indemnitee's
counsel if (i) the employment of counsel by Indemnitee has been previously
authorized by the Company, (ii) Indemnitee reasonably concludes that there is an
actual or potential conflict between the Company (or any other person or persons
included in a joint defense) and Indemnitee in the conduct of such defense or
representation by such counsel retained by the Company or (iii) the Company does
not continue to retain the counsel approved by Indemnitee.
10.3 COMPANY NOT ENTITLED TO ASSUME DEFENSE. Notwithstanding Section 10.1,
the Company will not be entitled to assume the defense of any Proceeding brought
by or on behalf of the Company or any Proceeding as to which Indemnitee has
reasonably made the conclusion provided for in Section 10.2(b)(ii).
ARTICLE 11
SETTLEMENT
11.1 COMPANY'S PRIOR CONSENT REQUIRED. Notwithstanding anything in this
Agreement to the contrary, the Company will have no obligation to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any
Proceeding effected without the Company's prior written consent.
11.2 WHEN INDEMNITEE'S PRIOR CONSENT REQUIRED. The Company will not,
without the prior written consent of Indemnitee, consent to the entry of any
judgment against Indemnitee
15
or enter into any settlement or compromise which (i) includes an admission of
fault of Indemnitee, any non-monetary remedy imposed on Indemnitee or a Loss for
which Indemnitee is not wholly indemnified hereunder or (ii) with respect to any
Proceeding with respect to which Indemnitee may be or is made a party or a
participant or may be or is otherwise entitled to seek indemnification
hereunder, does not include, as an unconditional term thereof, the full release
of Indemnitee from all liability in respect of such Proceeding, which release
will be in form and substance reasonably satisfactory to Indemnitee. Neither the
Company nor Indemnitee will unreasonably withhold its consent to any proposed
settlement; provided, however, Indemnitee may withhold consent to any settlement
that does not provide a full and unconditional release of Indemnitee from all
liability in respect of such Proceeding.
ARTICLE 12
ESTABLISHMENT OF TRUST
12.1 REQUEST BY INDEMNITEE. In the event a Change of Control occurs after
the date of this Agreement, the Company will be required, upon receipt of a
written request from Indemnitee following initiation of a Proceeding for which
Indemnitee reasonably believes that he or she may be entitled to indemnification
or contribution by the Company under this Agreement, the Articles, the Bylaws or
otherwise, to create a trust (the "TRUST") for the benefit of the Indemnitee.
The trustee of the Trust will be selected by the Indemnitee.
12.2 FUNDING OBLIGATIONS. Following a request from Indemnitee pursuant to
Section 12.1 to establish the Trust with respect to a particular Proceeding, the
Company will, from time to time upon written request of Indemnitee, fund the
Trust in an amount sufficient to satisfy any and all Expenses and Losses
reasonably anticipated at the time of such request to be incurred by or on
behalf of Indemnitee in connection with such Proceeding, provided, however, that
the aggregate amount that the Company may be required to fund in the Trust with
respect to such Proceeding will not, in any event, exceed (i) $50,000 if the
Company's securities are not listed on any of a national securities exchange or
the Nasdaq National Market or Nasdaq Small Cap Market, and the Company does not
have any securities registered pursuant to Section 12 of the Exchange Act, and
(ii) $200,000 if the Company's securities are listed on a national securities
exchange or the Nasdaq National Market or Nasdaq Small Cap Market or the Company
has securities registered pursuant to Section 12 of the Exchange Act; and,
provided, further, that the aggregate amount that the Company may be required to
fund in all Trusts with respect to all Proceedings for which the Company may be
required to indemnify Indemnitee or make contribution with respect to
Indemnittee will not, in any event, exceed (i) $50,000 if the Company's
securities are not listed on any of a national securities exchange or the Nasdaq
National Market or Nasdaq Small Cap Market, and the Company does not have any
securities registered pursuant to Section 12 of the Exchange Act, and (ii)
$200,000 if the Company's securities are listed on a national securities
exchange or the Nasdaq National Market or Nasdaq Small Cap Market or the Company
has securities registered pursuant to Section 12 of the Exchange Act. The amount
or amounts to be deposited in the Trust pursuant to the foregoing obligation
will be determined by mutual agreement of Indemnitee and the Company, and if
they are unable to reach such agreement, then by Independent Counsel (selected
as provided in Section 6.3). The terms of the Trust will provide that (i) except
upon prior written consent of Indemnitee, the Trust will not be revoked or the
principal thereof invaded, (ii) the trustee will advance to Indemnitee, within
fifteen (15) business days of a written request by Indemnitee, any
16
and all Expenses (and Indemnitee hereby agrees to execute the Undertaking
contemplated by Section 4.1, if required at the time any request for an Expense
Advance is submitted to the trustee), (iii) the Trust will continue to be funded
by the Company in accordance with the funding obligations set forth in this
Section 12.2, (iv) the trustee will promptly pay to Indemnitee any amounts to
which Indemnitee is entitled to indemnification or contribution pursuant to this
Agreement or otherwise and (v) all unexpended funds in the Trust will revert to
the Company upon a final determination by the person, persons or entity making a
determination of entitlement to indemnification or contribution pursuant to
Article 6 or a court or arbitrator presiding over an action commenced pursuant
to Article 8, as the case may be, that Indemnitee has been fully indemnified (or
all amounts to be contributed by the Company have been contributed) with respect
to the Proceeding giving rise to the establishment of the Trust.
ARTICLE 13
DURATION OF AGREEMENT
13.1 DURATION OF AGREEMENT. This Agreement will continue until and
terminate upon the latest of (a) the statute of limitations applicable to any
claim that could be asserted against an Indemnitee with respect to which
Indemnitee may be entitled to indemnification and/or an Expense Advance under
this Agreement, (b) ten years after the date that Indemnitee has ceased to serve
as a director or officer of the Company or as a director, officer, employee,
partner, member, manager, fiduciary or agent of any other Enterprise which
Indemnitee served at the request of the Company, or (c) if, at the later of the
dates referred to in (a) and (b) above, there is pending a Proceeding in respect
of which Indemnitee is granted rights of indemnification or the right to an
Expense Advance under this Agreement or a Proceeding commenced by Indemnitee
pursuant to Article 8 of this Agreement, one year after the final termination of
such Proceeding, including any and all appeals.
ARTICLE 14
MISCELLANEOUS
14.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties in respect of the subject matter hereof and
supersedes all prior understandings, agreements or representations by or among
the parties, written or oral, to the extent they relate in any way to the
subject matter hereof; provided, however, it is agreed that the provisions
contained in this Agreement are a supplement to, and not a substitute for, any
provisions regarding the same subject matter contained in the Articles, the
Bylaws and any employment or similar agreement between the parties.
14.2 ASSIGNMENT; BINDING EFFECT; THIRD PARTY BENEFICIARIES. No party may
assign either this Agreement or any of its rights, interests or obligations
hereunder without the prior written approval of the other party; provided,
however, that the Company may assign all (but not less than all) of its rights,
obligations and interests hereunder to any direct or indirect successor to all
or substantially all of the business or assets of the Company by purchase,
merger, consolidation or otherwise and will cause such successor to be bound by
and expressly assume the terms and provisions hereof. All of the terms,
agreements, covenants, representations, warranties and conditions of this
Agreement are binding upon, and inure to the benefit of and are enforceable by,
the parties and their respective successors, permitted assigns, heirs, executors
17
and personal and legal representatives. There are no third party beneficiaries
having rights under or with respect to this Agreement.
14.3 NOTICES. All notices, requests and other communications provided for
or permitted to be given under this Agreement must be in writing and be given by
personal delivery, by certified or registered United States mail (postage
prepaid, return receipt requested), by a nationally recognized overnight
delivery service for next day delivery, or by facsimile transmission, as follows
(or to such other address as any party may give in a notice given in accordance
with the provisions hereof):
IF TO THE COMPANY:
BioNumerik Pharmaceuticals, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Facsimile: 210.614.0643
WITH A COPY (WHICH WILL NOT CONSTITUTE NOTICE) TO:
BioNumerik Pharmaceuticals, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Vice President, Administration & General Counsel
Facsimile: 210.614.9439
IF TO INDEMNITEE:
[Name]
[Address]
[City, State, Zip]
Facsimile:
All notices, requests or other communications will be effective and deemed given
only as follows: (i) if given by personal delivery, upon such personal delivery,
(ii) if sent by certified or registered mail, on the fifth business day after
being deposited in the United States mail, (iii) if sent for next day delivery
by overnight delivery service, on the date of delivery as confirmed by written
confirmation of delivery, (iv) if sent by facsimile, upon the transmitter's
confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m. (in the recipient's time zone) on a
business day, or is received on a day that is not a business day, then such
notice, request or communication will not be deemed effective or given until the
next succeeding business day. Notices, requests and other communications sent in
any other manner, including by electronic mail, will not be effective.
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14.4 SPECIFIC PERFORMANCE; REMEDIES. Each party acknowledges and agrees
that the other party would be damaged irreparably if any provision of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. Accordingly, the parties will be entitled to an injunction
or injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and its provisions in any action or
proceeding instituted in any court of the United States or any state thereof
having jurisdiction over the parties and the matter, in addition to any other
remedy to which they may be entitled, at law or in equity. Except as expressly
provided herein, the rights, obligations and remedies created by this Agreement
are cumulative and in addition to any other rights, obligations or remedies
otherwise available at law or in equity. Except as expressly provided herein,
nothing herein will be considered an election of remedies.
14.5 SUBMISSION TO JURISDICTION. Any Proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement may only be brought in a district court of the State of Texas sitting
in Bexar County, which will be the exclusive and only proper forum for
adjudicating such Proceeding, and each party consents to the exclusive
jurisdiction and venue of such court (and of the appropriate appellate courts
therefrom) in any such Proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such Proceeding in any such court or that any such
Proceeding brought in any such court has been brought in an inconvenient forum.
Process in any such action, suit or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court.
14.6 HEADINGS. The article and section headings contained in this
Agreement are inserted for convenience only and will not affect in any way the
meaning or interpretation of this Agreement.
14.7 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas, without giving effect to any
choice of law principles.
14.8 AMENDMENT. This Agreement may not be amended or modified except by a
writing signed by all of the parties.
14.9 EXTENSIONS; WAIVERS. Any party may, for itself only, (i) extend the
time for the performance of any of the obligations of any other party under this
Agreement, (ii) waive any inaccuracies in the representations and warranties of
any other party contained herein or in any document delivered pursuant hereto
and (iii) waive compliance with any of the agreements or conditions for the
benefit of such party contained herein. Any such extension or waiver will be
valid only if set forth in a writing signed by the party to be bound thereby. No
waiver by any party of any default, misrepresentation or breach of warranty or
covenant hereunder, whether intentional or not, may be deemed to extend to any
prior or subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising because of any prior or
subsequent such occurrence. Neither the failure nor any delay on the part of any
party to exercise any right or remedy under this Agreement will operate as a
waiver thereof, nor will any single or partial exercise of any right or remedy
preclude any other or further exercise of the same or of any other right or
remedy.
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14.10 SEVERABILITY. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision will not
affect the validity or enforceability of the other provisions hereof; provided
that if any provision of this Agreement, as applied to any party or to any
circumstance, is judicially determined not to be enforceable in accordance with
its terms, the parties agree that the court judicially making such determination
may modify the provision in a manner consistent with its objectives such that it
is enforceable, and/or to delete specific words or phrases, and in its modified
form, such provision will then be enforceable and will be enforced.
14.11 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in two
or more counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument. This Agreement will become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, which delivery may be made by exchange of
copies of the signature page by facsimile transmission. For purposes of
determining whether a party has signed this Agreement or any document
contemplated hereby or any amendment or waiver hereof, only a handwritten
signature on a paper document or a facsimile transmission of a handwritten
original signature will constitute a signature, notwithstanding any law relating
to or enabling the creation, execution or delivery of any contract or signature
by electronic means.
14.12 CONSTRUCTION. This Agreement has been freely and fairly negotiated
among the parties. If an ambiguity or question of intent or interpretation
arises, this Agreement will be construed as if drafted jointly by the parties
and no presumption or burden of proof will arise favoring or disfavoring any
party because of the authorship of any provision of this Agreement. Any
reference to any law will be deemed also to refer to such law as amended and all
rules and regulations promulgated thereunder, unless the context requires
otherwise. The words "include," "includes," and "including" will be deemed to be
followed by "without limitation." Pronouns in masculine, feminine, and neuter
genders will be construed to include any other gender, and words in the singular
form will be construed to include the plural and vice versa, unless the context
otherwise requires. The words "this Agreement," "herein," "hereof," "hereby,"
"hereunder," and words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. The parties
intend that each representation, warranty, and covenant contained herein will
have independent significance. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty or covenant relating to the same subject
matter (regardless of the relative levels of specificity) which the party has
not breached will not detract from or mitigate the fact that the party is in
breach of the first representation, warranty, or covenant. Time is of the
essence in the performance of this Agreement.
[Signature page follows]
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[SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BIONUMERIK PHARMACEUTICALS, INC.
By:_____________________________________
Name: Xxxxxxxxx X. Xxxxxxxx, M.D.
Title: Chief Executive Officer
INDEMNITEE
___________________________________
Signature
___________________________________
Print Name
21
