EXHIBIT 3.1
ADEONA PHARMACEUTICALS, INC.
(a Delaware corporation)
BY-LAWS
(as amended through December 30, 2008)
ARTICLE ONE
STOCKHOLDERS
SECTION 1.1. ANNUAL MEETINGS. An annual meeting of stockholders to elect directors and transact
such other business as may properly be presented to the meeting shall be held at such place as the
Board of Directors may from time to time fix, if that day shall be a legal holiday in the
jurisdiction in which the meeting is to be held, then on the next day not a legal holiday or as
soon thereafter as may be practical, determined by the Board of Directors.
SECTION 1.2. SPECIAL MEETINGS. A special meeting of stockholders may be called at any time by the
Board of Directors or the President and shall be called by any of them or by the Secretary upon
receipt of a written request to do so specifying the matter or matters, appropriate for action at
such a meeting, proposed to be presented at the meeting and signed by holders of record of a
majority of the shares of stock that would be entitled to be voted on such matter or matters if the
meeting were held on the day such request is received and the record date for such meeting were the
close of business on the preceding day. Any such meeting shall be held at such time and at such
place, within or without the State of Delaware, as shall be determined by the body or person
calling such meeting and as shall be stated in the notice of such meeting.
SECTION 1.3. NOTICE OF MEETING. For each meeting of stockholders written notice shall be given
stating the place, date and hour and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Except as otherwise provided by Delaware law, the written notice of
any meeting shall be given not less than 10 or more than 60 days before the date of the meeting to
each stockholder entitled to vote at such meeting. If mailed, notice shall be deemed to be given
when deposited in the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the Corporation.
SECTION 1.4. QUORUM. Except as otherwise required by Delaware law or the Certificate of
Incorporation, the holders of record of a majority of the shares of stock entitled to be voted
present in person or represented by proxy at a meeting shall constitute a quorum for the
transaction of business at the meeting, but in the absence of a quorum the holders of record
present or represented by proxy at such meeting may vote to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is obtained. At any such
adjourned session of the meeting at which there shall be present or represented the holders of
record of the requisite number of shares, any business may be transacted that might have been
transacted at the meeting as originally called.
SECTION 1.5. CHAIRMAN AND SECRETARY AT MEETING. At each meeting of stockholders the President, or
in his absence the person designated in writing by the President, or if no person is so designated,
then a person designated by the Board of Directors, shall preside as chairman of the meeting; if no
person is so designated, then the meeting shall choose a chairman by plurality vote. The Secretary,
or in his absence a person designated by the chairman of the meeting, shall act as secretary of the
meeting.
SECTION 1.6. VOTING; PROXIES. Except as otherwise provided by Delaware law or the Certificate of
Incorporation, and subject to the provisions of Section 1.10:
(a) Each stockholder shall at every meeting of the stockholders be entitled to one vote for each
share of capital stock held by him.
(b) Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or persons to act for
him by proxy, but no such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period.
(c) Directors shall be elected by a plurality vote.
(d) Each matter, other than election of directors, properly presented to any meeting shall be
decided by a majority of the votes cast on the matter.
(e) Election of directors and the vote on any other matter presented to a meeting shall be by
written ballot only if so ordered by the chairman of the meeting or if so requested by any
stockholder present or represented by proxy at the meeting entitled to vote in such election or on
such matter, as the case may be.
SECTION 1.7. ADJOURNED MEETINGS. A meeting of stockholders may be adjourned to another time or
place as provided in Section 1.4 or 1.6(d). Unless the Board of Directors fixes a new record date,
stockholders of record for an adjourned meeting shall be as originally determined for the meeting
from which the adjournment was taken. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote. At the adjourned meeting any
business may be transacted that might have been transacted at the meeting as originally called.
SECTION
1.8. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action that may be taken at any annual or special meeting of stockholders may be taken without
a meeting, without prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. Notice of the taking of such
action shall be given promptly to each stockholder that would have been entitled to vote thereon at
a meeting of stockholders and that did not consent thereto in writing.
SECTION 1.9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. At least 10 days before every meeting of
stockholders a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of shares registered
in the name of each stockholder, shall be prepared and shall be open to the examination of any
stockholder for any purpose germane to the meeting, during ordinary business hours, for a period of
at least 10 days prior to the meeting, at a place within the city where the meeting is to be held.
Such list shall be produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
SECTION 1.10. FIXING OF RECORD DATE. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall not be more than 60
or less than 10 days before the date of such meeting, nor more than 60 days prior to any other
action. If no record date is fixed, the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; the record date for determining
stockholders entitled to express consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary, shall be the day on which the first written
consent is expressed; and the record date for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating thereto.
ARTICLE TWO
DIRECTORS
SECTION 2.1. NUMBER; TERM OF OFFICE; QUALIFICATIONS; VACANCIES. The number of directors that shall
constitute the whole Board of Directors shall be four, which number may be changed from time to
time as determined by action of the Board of Directors taken by the affirmative vote of a majority
of the whole Board of Directors. Directors shall be elected at the annual meeting of stockholders
to hold office, subject to Sections 2.2 and 2.3, until the next annual meeting of stockholders and
until their respective successors are elected and qualified. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum, or by the sole remaining
director, and the directors so chosen shall hold office, subject to Sections 2.2 and 2.3, until the
next annual meeting of stockholders and until their respective successors are elected and
qualified.
SECTION 2.2. RESIGNATION. Any director of the Corporation may resign at any time by giving written
notice of such resignation to the Board of Directors, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified therein or, if no time be
specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and,
unless specified therein, the acceptance of such resignation shall not be necessary to make it
effective. When one or more directors shall resign from the Board of Directors effective at a
future date, a majority of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen shall hold office
as provided in these By-Laws in the filling of other vacancies.
SECTION 2.3. REMOVAL. Any one or more directors may be removed, with or without cause, by the vote
or written consent of the holders of a majority of the shares entitled to vote at an election of
directors.
SECTION 2.4. REGULAR AND ANNUAL MEETINGS; NOTICE. Regular meetings of the Board of Directors shall
be held at such time and at such place, within or without the State of Delaware, as the Board of
Directors may from time to time prescribe. No notice need be given of any regular meeting, and a
notice, if given, need not specify the purposes thereof. A meeting of the Board of Directors may be
held without notice immediately after an annual meeting of stockholders at the same place as that
at which such meeting was held.
SECTION 2.5. SPECIAL MEETINGS; NOTICE. A special meeting of the Board of Directors may be called at
any time by the Board of Directors, its Chairman, the Executive Committee, the President or any
person acting in the place of the President and shall be called by any one of them or by the
Secretary upon receipt of a written request to do so specifying the matter or matters, appropriate
for action at such a meeting, proposed to be presented at the meeting and signed by at least two
directors. Any such meeting shall be held at such time and at such place, within or without the
State of Delaware, as shall be determined by the body or person calling such meeting. Notice of
such meeting stating the time and place thereof shall be given (a) by deposit of the notice in the
United States mail, first class, postage prepaid, at least two days before the day fixed for the
meeting addressed to each director at his address as it appears on the Corporation’s records or at
such other address as the director may have furnished the Corporation for that purpose, or (b) by
delivery of the notice similarly addressed for dispatch by telegraph, cable or radio or by delivery
of the notice by telephone or in person, in each case at least 24 hours before the time fixed for
the meeting.
SECTION 2.6. CHAIRMAN OF THE BOARD; PRESIDING OFFICER AND SECRETARY AT MEETINGS. The Board of
Directors may elect one of its members to serve at its pleasure as Chairman of the Board. Each
meeting of the Board of Directors shall be presided over by the Chairman of the Board or in his
absence by the President, if a director, or if neither is present by such member of the Board of
Directors as shall be chosen at the meeting. The Secretary, or in his absence an Assistant
Secretary, shall act as secretary of the meeting, or if
no such officer is present, a secretary of the meeting shall be designated by the person presiding
over the meeting.
SECTION 2.7. QUORUM. A majority of the whole Board of Directors shall constitute a quorum for the
transaction of business, but in the absence of a quorum a majority of those present (or if only one
be present, then that one) may adjourn the meeting, without notice other than announcement at the
meeting, until such time as a quorum is present. Except as otherwise required by the Certificate of
Incorporation or the By-Laws, the vote of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
SECTION 2.8. MEETING BY TELEPHONE. Members of the Board of Directors or of any committee thereof
may participate in meetings of the Board of Directors or of such committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in person at such
meeting.
SECTION 2.9. ACTION WITHOUT MEETING. Unless otherwise restricted by the Certificate of
Incorporation, any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all members of the Board of
Directors or of such committee, as the case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or of such committee.
SECTION 2.10. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board of Directors, designate an Executive Committee and one or more other
committees, each such committee to consist of one or more directors as the Board of Directors may
from time to time determine. Any such committee, to the extent provided in such resolution or
resolutions, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation, including the power to authorize the
seal of the Corporation to be affixed to all papers that may require it but no such committee shall
have such power of authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation’s property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the
By-Laws; and unless the resolution shall expressly so provide, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock. In the absence or
disqualification of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Each such committee other than the Executive Committee shall have
such name as may be determined from time to time by the Board of Directors.
SECTION 2.11. COMPENSATION. No director shall receive any stated salary for his services as a
director or as a member of a committee but shall receive such sum, if any, as may from time to time
be fixed by the action of a majority of the stockholders.
ARTICLE THREE
OFFICERS
SECTION 3.1. ELECTION; QUALIFICATION. The officers of the Corporation shall be a President, one or
more Vice Presidents, a Secretary and a Treasurer, each of whom shall be selected by the Board of
Directors. The Board of Directors may elect a Controller, one or more Assistant Secretaries, one or
more Assistant Treasurers, one or more Assistant Controllers and such other officers as it may from
time to time determine. Two or more offices may be held by the same person.
SECTION 3.2. TERM OF OFFICE. Each officer shall hold office from the time of his election and
qualification to the time at which his successor is elected and qualified, unless he shall die or
resign or shall be removed pursuant to Section 3.4 at any time sooner.
SECTION 3.3. RESIGNATION. Any officer of the Corporation may resign at any time by giving written
notice of such resignation to the Board of Directors, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified therein or, if no time be
specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and,
unless specified therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3.4. REMOVAL. Any officer may be removed at any time, with or without cause, by the vote of
two directors if there are three directors or less, or the vote of a majority of the whole Board of
Directors if there are more than three directors.
SECTION 3.5. VACANCIES. Any vacancy however caused in any office of the Corporation may be filled
by the Board of Directors.
SECTION 3.6. COMPENSATION. The compensation of each officer shall be such as the Board of Directors
may from time to time determine.
SECTION 3.7. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be the chairman of all meetings
of the Board of Directors.
SECTION 3.8. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be the chief executive
officer of the Corporation and shall have general charge of the business and affairs of the
Corporation, subject however to the right of the Board of Directors to confer specified powers on
officers and subject generally to the direction of the Board of Directors and the Executive
Committee, if any.
SECTION 3.9. PRESIDENT. The President shall have such powers and duties as generally pertain to the
office of President and as the Board of Directors or the President may from time to time prescribe.
During the absence of the Chief Executive Officer or his inability to act, the President shall
exercise the powers and shall perform the duties of the Chief Executive Officer, subject to the
direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.10. VICE PRESIDENT. Each Vice President shall have such powers and duties as generally
pertain to the office of Vice President and as the Board of Directors or the President may from
time to time prescribe. During the absence of the President or his inability to act, the Vice
President, or if there shall be more than one Vice President, then that one designated by the Board
of Directors, shall exercise the powers and shall perform the duties of the President, subject to
the direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.11. SECRETARY. The Secretary shall keep the minutes of all meetings of stockholders and
of the Board of Directors. He shall be custodian of the corporate seal and shall affix it or cause
it to be affixed to such instruments as require such seal and attest the same and shall exercise
the powers and shall perform the duties incident to the office of Secretary, subject to the
direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.12. OTHER OFFICERS. Each other officer of the Corporation shall exercise the powers and
shall perform the duties incident to his office, subject to the direction of the Board of Directors
and the Executive Committee, if any.
ARTICLE FOUR
CAPITAL STOCK
SECTION 4.1. STOCK CERTIFICATES. The interest of each holder of stock of the Corporation shall be
evidenced by a certificate or certificates in such form as the Board of Directors may from time to
time prescribe. Each certificate shall be signed by or in the name of the Corporation by the
President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary. Any of or all the signatures appearing on such certificate or certificates may
be a facsimile. If any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of issue.
SECTION 4.2. TRANSFER OF STOCK. Shares of stock shall be transferable on the books of the
Corporation pursuant to applicable law and such rules and regulations as the Board of Directors
shall from time to time prescribe.
SECTION 4.3. HOLDERS OF RECORD. Prior to due presentment for registration of transfer the
Corporation may treat the holder of record of a share of its stock as the complete owner thereof
exclusively entitled to vote, to receive notifications and otherwise entitled to all the rights and
powers of a complete owner thereof, notwithstanding notice to the contrary.
SECTION 4.4. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. The Corporation shall issue a new
certificate of stock to replace a certificate theretofore issued by it alleged to have been lost,
destroyed or wrongfully taken, if the owner or his legal representative (i) requests replacement,
before the Corporation has notice that the stock certificate has been acquired by a bona fide
purchaser; (ii) files with the Corporation a bond sufficient to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss or destruction of any such
stock certificate or the issuance of any such new stock certificate; and (iii) satisfies such other
terms and conditions as the Board of Directors may from time to time prescribe.
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.1.
Indemnification
.
Right to Indemnification
. The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any
person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity (an “Other Entity”), including service with respect to
employee benefit plans, against all liability and loss suffered and expenses (including attorneys’
fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except
as otherwise provided in Section 5.3, the Corporation shall be required to indemnify a Covered
Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if
the commencement of such Proceeding (or part thereof) by the Covered Person was authorized by the
Board.
Prepayment of Expenses
. The Corporation shall pay the expenses (including attorneys’
fees) incurred by a Covered Person in defending any Proceeding in advance of its final
disposition,
provided
,
however
, that, to the extent required by applicable law,
such payment of expenses in advance of the final disposition of the
Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay
all amounts advanced if it should be ultimately determined that the Covered Person is not entitled
to be indemnified under this Article 8 or otherwise.
Claims
. If a claim for indemnification or advancement of expenses under this Article
5 is not paid in full within 30 days after a written claim therefor by the Covered Person has been
received by the Corporation, the Covered Person may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden of proving that
the Covered Person is not entitled to the requested indemnification or advancement of expenses
under applicable law.’
Nonexclusivity of Rights
. The rights conferred on any Covered Person by this Article
5 shall not be exclusive of any other rights that such Covered Person may have or hereafter
acquire under any statute, provision of this Articles of Incorporation, the By-laws, agreement,
vote of stockholders or disinterested directors or otherwise.
Other Sources
. The Corporation’s obligation, if any, to indemnify or to advance
expenses to any Covered Person who was or is serving at its request as a director, officer,
employee or agent of an Other Entity shall be reduced by any amount such Covered Person may
collect as indemnification or advancement of expenses from such Other Entity.
Amendment or Repeal
. Any repeal or modification of the foregoing provisions of this
Article 5 shall not adversely affect any right or protection hereunder of any Covered Person in
respect of any act or omission occurring prior to the time of such repeal or modification.
Other Indemnification and Prepayment of Expenses
. This Article 5 shall not limit the
right of the Corporation, to the extent and in the manner permitted by applicable law, to
indemnify and to advance expenses to persons other than Covered Persons when and as authorized by
appropriate corporate action.
SECTION 5.2. WAIVER OF NOTICE. Whenever notice is required by the Certificate of Incorporation, the
By-Laws or any provision of the General Corporation Law of the State of Delaware, a written waiver
thereof, signed by the person entitled to notice, whether before or after the time required for
such notice, shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice.
SECTION 5.3. FISCAL YEAR. The fiscal year of the Corporation shall start on such date as the Board
of Directors shall from time to time prescribe.
SECTION 5.4. CORPORATE SEAL. The corporate seal shall be in such form as the Board of Directors may
from time to time prescribe, and the same may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
ARTICLE SIX
AMENDMENT OF BY-LAWS
SECTION 6.1. AMENDMENT. The By-Laws may be altered, amended or repealed by the stockholders or by
the Board of Directors by a majority vote.
EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
ADEONA PHARMACEUTICALS, INC.
THIS INDEMNIFICATION AGREEMENT (the “
Agreement
”) is made and entered into as of
December 30, 2008, between ADEONA PHARMACEUTICALS, INC., a Delaware corporation (the
“
Corporation
”), and the undersigned director and/or officer of the Corporation
(“
Indemnitee
”). Defined terms shall have the meaning ascribed to them in
Section 0
below.
Background
Indemnitee is a member of the Board of Directors and/or an officer of the Corporation and as
such performs a valuable service for the Corporation. To induce Indemnitee to continue to serve on
the Board of Directors and/or as an officer, the Corporation has agreed to provide to Indemnitee
the indemnifications and other rights described herein. The Corporation enters this Agreement
pursuant to the authority contained in its Certificate of Incorporation and Bylaws and the
provisions of the General Corporation Law of the State of Delaware (the “
DGCL
”).
Specifically, with respect to the DGCL, the Corporation enters this Agreement relying on the
provision stating that indemnification authorized by the DGCL is not exclusive.
The Corporation’s Certificate of Incorporation includes a provision eliminating or limiting
the personal liability of a director to the Corporation pursuant to paragraph (7) of subsection (b)
of Section 102 of the DGCL and, as a result, the DGCL permits the Corporation to indemnify and
advance expenses to the Indemnitee so long as the Indemnitee has not breached his or her duty of
loyalty to the Corporation or its stockholders, committed acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, violated Section 174 of the
DGCL or entered into transactions from which the Indemnitee derived an improper personal benefit.
The Corporation desires to provide to Indemnitee the additional indemnification rights set forth in
this Agreement, and Indemnitee desires to obtain such rights, all upon the terms and subject to the
conditions set forth in this Agreement.
The Board of Directors of the Corporation (the “
Board
”) has determined that the
increased difficulty in attracting and retaining such persons is detrimental to the best interests
of the Corporation’s stockholders and that the Corporation should act to assure such persons that
there will be increased certainty of such protection in the future. The Board has also determined
that it is reasonable, prudent and necessary for the Corporation contractually to obligate itself
to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the Corporation free from undue concern
that they will not be so indemnified.
This Agreement is intended as a supplement to and in furtherance of the By-laws of the
Corporation and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder, and Indemnitee does not
regard the protection available under the Corporation’s By-laws and insurance as adequate in the
present circumstances, and may not be willing to serve as an officer or a director without adequate
protection, and the Corporation desires Indemnitee to serve in such capacity. Indemnitee is
willing to serve, continue to serve and to take on additional service for or on behalf of the
Corporation on the condition that he or she be so indemnified.
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as a director and/or
officer of the Corporation as of and after the date hereof, the parties hereto agree as follows:
TERMS OF AGREEMENT
1.
Indemnity of Indemnitee
. The Corporation hereby agrees to hold harmless and
indemnify Indemnitee to the fullest extent permitted by law, as such may be amended from time to
time. In furtherance of the foregoing indemnification, and without limiting the generality
thereof:
(a)
Proceedings Other Than Proceedings by or in the Right of the Corporation
.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 1(a)
if, by reason of his or her Corporate Status, the Indemnitee is, or is threatened to be made, a
party to or participant in any Proceeding other than a Proceeding by or in the right of the
Corporation. Pursuant to this
Section 1(a)
, Indemnitee shall be indemnified against all
Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or her, or on his or her behalf, in connection with such Proceeding or any claim,
issue or matter therein, if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the Corporation, and with
respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was
unlawful.
(b)
Proceedings by or in the Right of the Corporation
. Indemnitee shall be entitled
to the rights of indemnification provided in this
Section 1(b)
if, by reason of his or her
Corporate Status, the Indemnitee is, or is threatened to be made, a party to or participant in any
Proceeding brought by or in the right of the Corporation. Pursuant to this
Section 1(b)
,
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the
Indemnitee, or on the Indemnitee’s behalf, in connection with such Proceeding if the Indemnitee
acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to
the best interests of the Corporation; provided, however, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim, issue or matter in
such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Corporation
unless and to the extent that a court of competent jurisdiction shall determine that such
indemnification may be made.
(c)
Indemnification for Expenses of a Party Who is Wholly or Partly Successful
.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason
of his or her Corporate Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, he or she shall be indemnified to the maximum extent permitted by law, as such may be
amended from time to time, against all Expenses actually and reasonably incurred by him or her or
on his or her behalf in connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Corporation shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection
with each successfully resolved claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2.
Additional Indemnity
.
In addition to, and without regard to any limitations on,
the indemnification provided for in
Section 1
of this Agreement, the Corporation shall and
hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by him or her or on his or
her behalf if, by reason of his Corporate Status, he or she is, or is threatened to be made, a
party to or participant in any Proceeding (including a Proceeding by or in the right of the
Corporation), including, without limitation, all liability arising out of the negligence or active
or passive wrongdoing of Indemnitee. The only limitation that shall exist upon the Corporation’s
obligations pursuant to this Agreement shall be that the Corporation shall not be obligated to make
any payment to Indemnitee that is finally determined (under the procedures, and subject to the
presumptions, set forth in
Sections 6
and
7
hereto) to be unlawful.
3.
Contribution
.
(a) Whether or not the indemnification provided in
Sections 1
and
2
hereof is
available, in respect of any threatened, pending or completed action, suit or proceeding in which
the Corporation is jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), the Corporation shall pay, in the first instance, the entire amount of any judgment or
settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such
payment and the Corporation hereby waives and relinquishes any right of contribution it may have
against Indemnitee. The Corporation shall not enter into any settlement of any action, suit or
proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding) unless such settlement provides for a full and final release of
all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Corporation set forth in the
preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any
portion of any judgment or settlement in any threatened, pending or completed action, suit or
proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), the Corporation shall contribute to the amount of expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits
received by the Corporation and all directors of the Corporation, other than Indemnitee, who are
jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, from the transaction from which such action, suit or
proceeding arose; provided, however, that the proportion determined on the basis of relative
benefit may, to the extent necessary to conform to law, be further adjusted by reference to the
relative fault of the Corporation and all directors of the Corporation other than Indemnitee who
are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on
the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in
such expenses, judgments, fines or settlement amounts, as well as any other equitable
considerations which the applicable law may require to be considered. The relative fault of the
Corporation and all directors of the Corporation, other than Indemnitee, who are jointly liable
with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree
to which their actions were motivated by intent to gain personal profit or advantage, the degree to
which their liability is primary or secondary and the degree to which their conduct is active or
passive.
(c) The Corporation hereby agrees to fully indemnify and hold Indemnitee harmless from any
claims of contribution which may be brought by directors of the Corporation, other than Indemnitee,
who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Corporation, in
lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for
Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in
such proportion as is deemed fair and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits received by the Corporation and Indemnitee
as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the
relative fault of the Corporation (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or transaction(s).
4.
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, he or she shall be indemnified against all
Expenses actually and reasonably incurred by him or her or on his or her behalf in connection
therewith.
5.
Limitations
.
The Corporation shall not be obligated to make any payment to
Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set
forth in
Sections 0
and
0
hereof) to be unlawful. Additionally, the Corporation
shall not be obligated to indemnify the Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes and penalties, and
amounts paid in settlement) for which payment is actually made to or on behalf of Indemnitee under
a valid and collectible insurance policy of D&O Insurance of the Corporation, or under a valid and
enforceable indemnity clause, by-law or agreement of the Corporation.
6.
Advancement of Expenses
.
Notwithstanding any other provision of this Agreement,
the Corporation shall advance all Expenses incurred by or on behalf of Indemnitee in connection
with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the
receipt by the Corporation of a statement or statements from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall
include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and undertakings to repay pursuant to this
Section 0
shall be unsecured and interest free. Indemnitee hereby undertakes to repay
amounts advanced only if, and to the extent that, it shall be determined ultimately that the
Indemnitee is not entitled to indemnification or contribution by the Corporation as authorized
hereby.
7.
Procedures and Presumptions for Determination of Entitlement to Indemnification
.
It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as
favorable as may be permitted under the DGCL and public policy of the state of the Corporation’s
incorporation. Accordingly, the parties agree that the following procedures and presumptions shall
apply in the event of any question as to whether Indemnitee is entitled to indemnification under
this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Corporation
a written request, including therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 7(a)
hereof, a determination, if required by applicable law, with respect to
Indemnitee’s entitlement thereto shall be made in the specific case by one of the following three
methods, which, except as provided in the sentence below, shall be at the election of the Board:
(1) by a majority vote of the disinterested directors, even though less than a quorum, by a
committee of disinterested directors designated by a majority vote of the disinterested directors,
even though less than a quorum, (2) if there are no disinterested directors or if the disinterested
directors so direct, by independent legal counsel in a written opinion to the Board, a copy of
which shall be delivered to the Indemnitee, or (3) if so directed by the Board, by the stockholders
of the Corporation. Notwithstanding the above sentence, and to the extent allowed by applicable
law, in the event of a Change of Control, the determination with respect to an Indemnitee’s
entitlement to indemnification shall be made by independent legal counsel in a written opinion to
the Board, a copy of which shall be delivered to the Indemnitee. For purposes hereof,
disinterested directors are those members of the Board who are not parties to the action, suit or
proceeding in respect of which indemnification is sought by Indemnitee.
(c) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to
Section 7(b)
hereof, the Independent Counsel shall be selected as
provided in this
Section 7(c)
. The Independent Counsel shall be selected by the Board.
Indemnitee may, within 10 days after such written notice of selection shall have been given,
deliver to the Corporation, 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
Section
14
of this Agreement, and the objection shall set forth with particularity the factual basis of
such assertion. Absent a proper and timely objection, the person so selected shall act as
Independent Counsel. If 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 20 days after submission by
Indemnitee of a written request for indemnification pursuant to
Section 7(a)
hereof, no
Independent Counsel shall have been selected and not objected to, either the Corporation or
Indemnitee may petition a court of competent jurisdiction for resolution of any objection which
shall have been made by the Indemnitee to the Corporation’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 shall designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under
Section 7(b)
hereof. The Corporation shall pay any and all reasonable fees and expenses of Independent Counsel
incurred by such Independent Counsel in connection with acting pursuant to
Section 7(b)
hereof, and, unless a court of competent jurisdiction finds that each of the claims and/or defenses
of the Indemnitee in any such proceeding was frivolous or made in bad faith, the Corporation shall
pay all reasonable fees and expenses incident to the procedures of this
Section7(c)
,
regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure
of the Corporation (including by its directors or independent legal counsel) to have made a
determination prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Corporation (including by its directors or
independent legal counsel) that Indemnitee has not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Enterprise, including financial statements, or on
information supplied to Indemnitee by the officers of the Enterprise in the course of their duties,
or on the advice of legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions,
or failure to act, of any director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to indemnification under this
Agreement. Whether or not the forgoing provisions of this
Section 7(e)
are satisfied, it
shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of the Corporation.
Anyone seeking to overcome this presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under
Section 7
to
determine whether Indemnitee is entitled to indemnification shall not have made a determination
within sixty (60) days after receipt by the Corporation of the request therefor, the requisite
determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s statement not materially misleading, in connection
with the request for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the person, persons or entity making such
determination with respect to entitlement to indemnification in good faith requires such additional
time to obtain or evaluate documentation and/or information relating thereto; and provided,
further, that the foregoing provisions of this
Section 7(f)
shall not apply if the
determination of entitlement to indemnification is to be made by the stockholders pursuant to
Section 7(b)
of this Agreement and if (A) within fifteen (15) days after receipt by the
Corporation of the request for such determination, the Board or the Disinterested Directors, if
appropriate, resolve to submit such determination to the stockholders for their consideration at an
annual meeting thereof to be held within seventy-five (75) days after such receipt and such
determination is made thereat, or (B) a special meeting of stockholders is called within fifteen
(15) days after such receipt for the purpose of making such determination, such meeting is held for
such purpose within sixty (60) days after having been so called and such determination is made
thereat.
(g) Indemnitee shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee
and reasonably necessary to such determination. Any Independent Counsel, member of the Board or
stockholder of the Corporation shall act reasonably and in good faith in making a determination
regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or
expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating
with the person, persons or entity making such determination shall be borne by the Corporation
(irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the
Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Corporation acknowledges that a settlement or other disposition short of final
judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption
and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party
is resolved in any manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without payment of money or
other consideration) it shall be presumed that Indemnitee has been successful on the merits or
otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall
have the burden of proof and the burden of persuasion by clear and convincing evidence.
(i) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and
in a manner which he or she reasonably believed to be in or not opposed to the best interests of
the Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause
to believe that his or her conduct was unlawful.
8.
Remedies of Indemnitee
.
(a) In the event that (i) a determination is made pursuant to
Section 7
of this
Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement
of Expenses is not timely made pursuant to
Section 6
of this Agreement, (iii) no
determination of entitlement to indemnification is made pursuant to
Section 7(b)
of this
Agreement within thirty (30) days after receipt by the Corporation of the request for
indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten
(10) days after receipt by the Corporation of a written request therefor or (v) payment of
indemnification is not made
within ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 7
of
this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of
competent jurisdiction of Indemnitee’s entitlement to such indemnification. Indemnitee shall
commence such proceeding seeking an adjudication within 180 days following the date on which
Indemnitee first has the right to commence such proceeding pursuant to this
Section 8
.
Alternatively, with respect to the matter described in clause (ii) in the previous sentence,
Indemnitee at his or her option may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association, such award to be made
within sixty (60) days following the filing of the demand for arbitration, to which selection of
arbitration at Indemnitee’s option the Corporation hereby agrees. The Corporation shall not oppose
Indemnitee’s right to seek any such adjudication or arbitration.
(b) In the event that a determination shall have been made pursuant to
Section 7(b)
of
this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this
Section 8
shall be conducted in all respects as a de
novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse
determination under
Section 7(b).
(c) If a determination shall have been made pursuant to
Section 7(b)
of this Agreement
that Indemnitee is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to this
Section
8
, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the
application for indemnification, or (ii) a prohibition of such indemnification under applicable
law.
(d) In the event that Indemnitee, pursuant to this
Section 8
, seeks a judicial
adjudication or arbitration of his or her rights under, or to recover damages for breach of, this
Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained
by the Corporation, the Corporation shall pay on his or her behalf, in advance, any and all
expenses (of the types described in the definition of Expenses in
Section 14
of this
Agreement) actually and reasonably incurred by him or her in such judicial adjudication or
arbitration, as well as reasonable compensation for Indemnitee’s time actually spent with respect
to such action or proceeding, unless the Indemnitee ultimately is determined to not be entitled to
such indemnification, advancement of expenses or insurance recovery.
(e) The Corporation shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this
Section 8
that the procedures and presumptions of
this Agreement are not valid, binding and enforceable and shall stipulate in any such court that
the Corporation is bound by all the provisions of this Agreement. The Corporation shall indemnify
Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10)
days after receipt by the Corporation of a written request therefore) advance, to the extent not
prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with
any action brought by Indemnitee for indemnification or advance of Expenses from the Corporation
under this Agreement or under any directors’ and officers’ liability insurance policies maintained
by the Corporation, unless the Indemnitee ultimately is determined to not be entitled to such
indemnification, advancement of Expenses or insurance recovery, as the case may be.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding.
9.
Non-Exclusivity; Survival of Rights; Insurance; Subrogation
.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled under applicable law, the
certificate of incorporation of the Corporation, the Bylaws, any agreement, a vote of stockholders,
a resolution of directors or otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in
respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to
such amendment, alteration or repeal. To the extent that a change in the DGCL, whether by statute
or judicial or arbitration decision, permits greater indemnification than would be afforded
currently under the Bylaws and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To the extent that the Corporation maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or fiduciaries of the Corporation
or of any other corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that such person serves at the request of the Corporation, Indemnitee shall be covered
by such policy or policies in accordance with its or their terms to the maximum extent of the
coverage available for any director, officer, employee, agent or fiduciary under such policy or
policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the
Corporation has director and officer liability insurance in effect, the Corporation shall give
prompt notice of the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Corporation shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Corporation shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all
papers required and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to enforce such rights.
(d) The Corporation shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.
(e) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who
is or was serving at the request of the Corporation as a director, officer, employee or agent of
any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
shall be reduced by any amount Indemnitee has actually received as indemnification or advancement
of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise.
10.
Exception to Right of Indemnification
.
Notwithstanding any provision in this
Agreement, the Corporation shall not be obligated under this Agreement to:
(a) make any indemnity in connection with any claim made against Indemnitee:
(i) for which payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond the amount paid under
any insurance policy or other indemnity provision; or
(ii) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Corporation within the meaning of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or
(iii) in connection with any Proceeding (or any part of any Proceeding) initiated by
Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee
against the Corporation or its directors, officers, employees or other indemnitees, unless (i) the
Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the
Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in
the Corporation under applicable law;
(b) indemnify the Indemnitee for any expenses incurred by the Indemnitee with respect to any
proceeding instituted by the Indemnitee to enforce or interpret this Agreement, if a court of
competent jurisdiction determines that each of the material assertions made by the Indemnitee in
such proceeding was not made in good faith or was frivolous; or
(c) indemnify the Indemnitee under this Agreement for any amounts paid in settlement of a
proceeding unless the Corporation consents to such settlement, which consent shall not be
unreasonably withheld.
11.
Duration of Agreement
.
All agreements and obligations of the Corporation
contained herein shall continue during the period Indemnitee is an officer or director of the
Corporation (or is or was serving at the request of the Corporation as an officer, director,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise)
for a period of not less than three years thereafter, and in any case, shall continue thereafter so
long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under
Section 8
hereof) by reason of his or her Corporate Status, whether or not he or she is
acting or serving in any such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement. This Agreement shall, without any further
action required by any party, be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the business or assets
of the Corporation), assigns, spouses, heirs, executors and personal and legal representatives.
12.
Security
.
To the extent requested by Indemnitee and approved by the Board, the
Corporation may at any time and from time to time provide security to Indemnitee for the
Corporation’s obligations hereunder through an irrevocable bank line of credit, funded trust or
other collateral. Any such security, once provided to Indemnitee, may not be revoked or released
without the prior written consent of the Indemnitee.
13.
Enforcement
.
(a) The Corporation expressly confirms and agrees that it has entered into this Agreement and
assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer
or director of the Corporation, and the Corporation acknowledges that Indemnitee is relying upon
this Agreement in serving as an officer or director of the Corporation.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof.
14.
Definitions
.
For purposes of this Agreement:
(a) “
Change in Control
” shall be deemed to occur upon the earliest to occur after the
date of this Agreement of any of the following events:
(i)
Change in Board
. During any period of two (2) consecutive years (not including
any period prior to the execution of this Agreement), individuals who at the beginning of such
period constitute the Board cease for any reason to constitute a least a majority of the members of
the Board;
(ii)
Corporate Transactions
. The effective date of a merger or consolidation of the
Corporation with any other entity, other than a merger or consolidation which would result in the
voting securities of the Corporation outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 51% of the combined voting power of the voting
securities of the surviving entity outstanding immediately after such merger or consolidation and
with the power to elect at least a majority of the board of directors or other governing body of
such surviving entity; and
(iii)
Liquidation
. The approval by the stockholders of the Corporation of a complete
liquidation of the Corporation or an agreement for the sale or disposition by the Corporation of
all or substantially all of the Corporation’s assets.
(b) “
Corporate Status
” describes the status of a person who is or was a director,
officer, employee, agent or fiduciary of the Corporation or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving
at the express written request of the Corporation.
(c) “
Disinterested Director
” means a director of the Corporation who is not and was
not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(d) “
Enterprise
” shall mean the Corporation and any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving
at the express written request of the Corporation as a director, officer, employee, agent or
fiduciary.
(e) “
ERISA
” shall mean the Employee Retirement Income Security Act of 1974, as
amended.
(f) “
Expenses
” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating, or being or preparing to be a witness in a
Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting
from any Proceeding, including without limitation the premium, security for, and other costs
relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses,
however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments,
fines, ERISA excise taxes or penalties, or amounts paid in settlement of a proceeding against
Indemnitee.
(g) “
Independent Counsel
” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the past five years has
been, retained to represent: (i) the Corporation or Indemnitee in any matter material to either
such party (other than with respect to matters concerning Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term “
Independent Counsel
” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Corporation or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Corporation agrees to pay the reasonable fees of the
Independent Counsel referred to above and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(h) “
Proceeding
” includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or any other actual, threatened or completed proceeding, whether brought by or in the right of the
Corporation or otherwise and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that
Indemnitee is or was a director or officer of the Corporation, by reason of any action taken by him
or her or of any inaction on his or her part while acting as a director or officer of the
Corporation, or by reason of the fact that he or she is or was serving at the request of the
Corporation as a director, officer, agent or fiduciary of another corporation, partnership, joint
venture, trust or other Enterprise; in each case whether or not he or she is acting or serving in
any such capacity at the time any liability or expense is incurred for which indemnification can be
provided under this Agreement; including one pending on or before the date of this Agreement, but
excluding one initiated by an Indemnitee pursuant to
Section 0
of this Agreement to enforce
his or her rights under this Agreement.
15.
Severability
.
The invalidity of unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision. Without limiting the
generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification
rights to the fullest extent permitted by applicable laws. In the event any provision hereof
conflicts with any applicable law, such provision shall be deemed modified, consistent with the
aforementioned intent, to the extent necessary to resolve such conflict.
16.
Modification and Waiver
.
No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
17.
Notice By Indemnitee
.
Indemnitee agrees promptly to notify the Corporation in
writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter which may be subject
to indemnification covered hereunder. The failure to so notify the Corporation shall not relieve
the Corporation of any obligation which it may have to Indemnitee under this Agreement or otherwise
unless and only to the extent that such failure or delay materially prejudices the Corporation.
18.
Notices
.
All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c)
five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent:
To Indemnitee at the address set forth below his or her signature hereto.
To the Corporation at:
Adeona Pharmaceuticals, Inc.
3930 Varsity Drive
Ann Arbor MI, 48108
Facsimile: (734) 332-7878
Attention: Chief Executive Officer
or to such other address as may have been furnished to Indemnitee by the Corporation or to the
Corporation by Indemnitee, as the case may be.
19.
Counterparts
.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
20.
Headings
.
The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
21.
Governing Law
.
This Agreement and the legal relations among the parties shall be
governed by, and construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules;
provided
,
however
, that in the event
that the Corporation’s successor in interest pursuant to a merger, consolidation or similar
transaction is incorporated in a state other than Delaware, then this Agreement and the legal
relations among the parties shall, from the effective time of such transaction forward, be governed
by, construed and enforced in accordance with the laws of the state of incorporation of such
Corporation’s successor, without giving effect to principles of conflicts of law.
[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement on and as of
the day and year first above written.
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ADEONA PHARMACEUTICALS, INC.
a Delaware corporation
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By:
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Print Name:
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Title:
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INDEMNITEE
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By:
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Print Name:
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Address:
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