FORM OF INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is
made and entered into as of ___, by and between Tenby Pharma Inc.,
a Delaware corporation (the “Company”), and ___
(“Indemnitee”).
WHEREAS,
the Board of Directors of the Company (the “ Board of
Directors ”) has determined that it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS,
Indemnitee currently serves or has been asked by the Company to
serve as a director and/or officer of the Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of
litigation and other claims currently being asserted against
directors and officers of corporations;
WHEREAS,
in recognition of Indemnitee’s need for substantial
protection against personal liability, and in order to induce
Indemnitee to serve or to continue to serve as a director and/or
officer of the Company, the Company has agreed to indemnify and to
advance expenses and costs incurred by Indemnitee in connection
with any claims, suits or other proceedings arising out of his
service, to the fullest extent permitted by law; and
WHEREAS,
the parties by this Agreement desire to set forth their agreement
regarding indemnification and advancement of expenses.
NOW,
THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and
agree as follows:
Section 1. Definitions . For purposes of this
Agreement:
(a) “
Change in Control ” shall be deemed to have occurred
if after the Effective Date (i) any “person” or
“group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
any holder of the Company’s voting securities as of the
Effective Date, is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing twenty
percent (20%) or more of the combined voting power of the
Company’s then outstanding voting securities without the
prior approval of at least two-thirds (2/3) of the members of the
Board of Directors in office immediately prior to such person
attaining such percentage interest, (ii) there occurs a proxy
contest, or the Company is a party to a merger, consolidation, sale
of assets, plan of liquidation or other reorganization not approved
by at least two-thirds (2/3) of the members of the Board of
Directors then in office, and as a consequence of which members of
the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board
of Directors thereafter, or (iii) during any period of two
(2) consecutive years, other than as a result of an event
described in clause (a)(ii) of this Section 1, individuals who
at the beginning of such period constituted the Board of Directors
(including for this purpose any new director whose election or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds (2/3) of the directors
then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of
the Board of Directors.
(b) “
Corporate Status ” means the status of a person who is
or was a director, trustee, officer, employee, agent or fiduciary
of the Company or of any other corporation, partnership,
joint venture,
trust, employee benefit plan or other enterprise for which such
person is or was serving at the request of the Company.
(c) “
Disinterested Director ” means a director of the
Company who is not and was not a party to the Proceeding in respect
of which indemnification or advancement of Expenses is sought by
Indemnitee.
(d) “
Effective Date ” means the date set forth in the first
paragraph of this Agreement.
(e) “
Enterprise ” means the Company and any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise that Indemnitee is or was serving at the
request of the Company as a director, trustee, officer, employee,
agent or fiduciary.
(f) “
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
(g) “
Expenses ” shall include all reasonable out-of-pocket
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 (i) prosecuting,
defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding and
(ii) establishing a right to indemnification in accordance
with this Agreement.
(h) “
Independent Counsel ” means a law firm, or a member of
a law firm, that is experienced in matters of corporation law and
neither 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 Indemnitee under this Agreement or of other indemnitees
under similar agreements), or (ii) any other party to or
witness in 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 Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
(i) “
Proceeding ” includes any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or
investigative (including on appeal), except one pending or
completed on or before the Effective Date, unless otherwise
specifically agreed in writing by the Company and
Indemnitee.
In addition, in
this Agreement, (i) references to “fines” shall
include any excise tax assessed with respect to any employee
benefit plan, (ii) references to “serving at the request
of the Company” shall include any service as an officer,
director, committee member or official which imposes duties on, or
involves services by, such person, with respect to an employee
benefit plan, its participants or beneficiaries, and
(iii) action taken or omitted to be taken by Indemnitee with
respect to an employee benefit plan in the performance of
Indemnitee’s duties for a purpose reasonably believed to be
in the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to be a purpose that is
“not opposed to the best interests of the
Company”.
Section 2. Indemnification — General . The
Company shall indemnify, and advance Expenses to, Indemnitee
(a) to the fullest extent permitted by applicable law, as
amended from time to time and (b) without limitation of clause
(a), as provided in this Agreement; provided ,
however , that no
change in
applicable law after the Effective Date shall have the effect of
reducing the benefits available to Indemnitee hereunder based on
applicable law as in effect on the Effective Date. The rights of
Indemnitee provided in this Section 2 shall include, without
limitation, the rights set forth in the other sections of this
Agreement, and any additional rights to indemnification permitted
by (i) Section 145 of the Delaware General Corporation
Law (the “ DGCL ”), (ii) the charter
or bylaws of the Company, (iii) a resolution of stockholders
or directors, or (iv) any other agreement to which the Company
is a party.
Section 3. Proceedings Other Than Proceedings by or in
the Right of the Company . Indemnitee shall be entitled to
the rights of indemnification provided in this Section 3 if,
by reason of his Corporate Status, he is, or is threatened to be,
made a party to or a witness in any threatened, pending, or
completed Proceeding, other than a Proceeding by or in the right of
the Company. Pursuant to this Section 3, Indemnitee shall be
indemnified against all judgments, penalties, fines and amounts
paid in settlement and all Expenses actually and reasonably
incurred by him or on his behalf in connection with a Proceeding by
reason of his Corporate Status if Indemnitee acted in good faith
and in a manner in which Indemnitee reasonably believed was in (or
not opposed to) the best interests of the Company, and (b) in
the case of any criminal Proceeding, Indemnitee had no reasonable
cause to believe that his conduct was unlawful.
Section 4. Proceedings by or in the Right of the
Company . Indemnitee shall be entitled to the rights of
indemnification provided in this Section 4 if, by reason of
his Corporate Status, he is, or is threatened to be, made a party
to or a witness in any threatened, pending or completed Proceeding
brought by or in the right of the Company to procure a judgment in
its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by him or on his behalf in connection with such Proceeding if
Indemnitee acted in good faith and in a manner in which Indemnitee
reasonably believed was in (or not opposed to) the best interests
of the Company; 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
Company unless and to the extent that a court of appropriate
jurisdiction shall determine that such indemnification may be
made.
Section 5
Court-Ordered Indemnification . Notwithstanding any
other provision of this Agreement, a court of appropriate
jurisdiction, upon application of Indemnitee and such notice as the
court shall require, may order indemnification in the following
circumstances: (a) if it determines Indemnitee is entitled to
reimbursement under Section 145 of the DGCL, the court shall
order indemnification, in which case Indemnitee shall be entitled
to recover the expenses of securing such reimbursement, or
(b) if it determines that Indemnitee is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances, whether or not Indemnitee has met the standards of
conduct set forth in Section 145 of the DGCL, the court may
order such indemnification as the court shall deem
proper.
Section 6. 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 Corporate Status, made a party to and is successful,
on the merits or otherwise, in the defense of any Proceeding, he
shall be indemnified for all Expenses incurred by him or on his
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 Company shall indemnify Indemnitee
under this Section 6 for all Expenses incurred by him or on
his behalf in connection with each successfully resolved claim,
issue or matter, allocated on a reasonable and proportionate basis.
For purposes of this Section 6 and without limitation of the
foregoing, 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.
Section 7. Advancement of Expenses . The Company
shall advance all Expenses incurred by or on behalf of Indemnitee
in connection with any Proceeding to which Indemnitee is, or is
threatened to be, made a party or a witness by reason of
Indemnitee’s Corporate Status, within twenty (20) days
after the receipt by the Company 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 and
without regard to Indemnitee’s ultimate entitlement to
indemnification under this Agreement. Such statement or statements
shall reasonably evidence the Expenses incurred by Indemnitee and
shall include or be preceded or accompanied by a written
affirmation by Indemnitee of Indemnitee’s good faith belief
that the standard of conduct necessary for indemnification by the
Company as authorized by applicable law and by this Agreement has
been met and a written undertaking by or on behalf of Indemnitee,
in such form as the Company may from time to time reasonably
require or as may be required under applicable law as in effect at
the time of the execution thereof, to reimburse the portion of any
Expenses advanced to Indemnitee relating to claims, issues or
matters in the Proceeding as to which it shall ultimately be
established that the standard of conduct has not been met. The
undertaking to reimburse Expenses required by this Section 7
shall be an unlimited general obligation by or on behalf of
Indemnitee and shall be accepted without reference to
Indemnitee’s financial ability to repay such advanced
Expenses and without any requirement to post security therefor.
Advances shall be unsecured and interest free.
Section 8. Procedure for Determination of Entitlement to
Indemnification .
(a) To
obtain indemnification and payment of Expenses under this Agreement
(other than advance of Expenses, which shall be governed by
Section 7), Indemnitee shall submit to the Company 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 omission to notify
the Company will not relieve the Company from any liability that it
may have to Indemnitee under this Agreement, except and only to the
extent set forth in Section 11(a). The Secretary of the
Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
|
