FORM OF INDEMNITY
AGREEMENT
THIS INDEMNITY AGREEMENT, effective as of
September 11, 2008, between NEUROBIOLOGICAL TECHNOLOGIES,
INC., a Delaware corporation (the “Corporation”), and
_____ (“Indemnitee”),
WHEREAS, Indemnitee is either a member of the
board of directors of the Corporation (the “Board of
Directors”) or an officer of the Corporation, or both, and in
such capacity or capacities, or otherwise as an Agent of the
corporation (as hereinafter defined), is performing a valuable
service for the Corporation; and
WHEREAS, Indemnitee is willing to serve,
continue to serve, and take on additional service for or on behalf
of the Corporation on the condition that he or she be indemnified
as herein provided; and
WHEREAS, it is intended that Indemnitee shall be
paid promptly by the Corporation all amounts necessary to
effectuate in full the indemnity provided herein:
NOW THEREFORE, in consideration of the promises
and the covenants in this Agreement, and of Indemnitee continuing
to serve the Corporation as an Agent and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Services of Indemnitee .
Indemnitee agrees to serve as a director or as an officer of the
Corporation, or both, so long as he or she is duly appointed or
elected and qualified in accordance with the applicable provisions
of the Certificate of Incorporation and Bylaws of the Corporation,
and until such time as he or she resigns or fails to stand for
election or is removed from his or her position. Indemnitee may
from time to time also perform other services at the request, or
for the convenience of, or otherwise benefiting the Corporation.
Indemnitee may at any time and for any reason resign or be removed
from such position (subject to any other contractual obligation or
other obligation imposed by operation of law), in which event the
Corporation shall have no obligation under this Agreement to
continue Indemnitee in any such position.
2. Indemnification and Right of
Contribution .
(a) Except as set forth below, the
Corporation shall indemnify Indemnitee against Expenses and
Liabilities in connection with any Proceeding arising out of acts
or omissions of Indemnitee occurring during Indemnitee’s
service as an Agent of the Corporation to the fullest extent
permitted by applicable law or the Certificate of Incorporation of
the Corporation in effect on the date hereof or as such law or
Certificate of Incorporation may from time to time be amended (but,
in the case of any such amendment, only to the extent such
amendment permits the Corporation to provide broader
indemnification rights than the law or Certificate of Incorporation
permitted the Corporation to provide before such amendment). The
right to indemnification provided in the Certificate of
Incorporation shall be presumed to have been relied upon by
Indemnitee in serving or continuing to serve the Corporation as an
Agent and shall be enforceable as a contract right. Without in any
way diminishing the scope of the indemnification provided by this
Section 2, the Corporation shall indemnify Indemnitee whenever
he or she is or was a party or is threatened to be made a party to
any Proceeding, including without limitation any such Proceeding
brought by or in the right of the Corporation, by reason of the
fact that he or she was an Agent or by reason of anything done or
not done by Indemnitee in such capacity, against Expenses and
Liabilities actually and reasonably incurred by Indemnitee or on
his or her behalf in connection with such Proceeding, including the
costs of any investigation, defense, settlement or
appeal.
(b) Notwithstanding the foregoing, no
indemnification shall be made with respect to any claim, issue or
matter if:
(i) indemnification is sought in connection
with a claim not brought by or in the right of the Company and it
has been finally adjudicated by a court of competent jurisdiction
that, in connection with such specific claim, issue or matter,
Indemnitee failed to act (x) in good faith and (y) in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal
Proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(ii) indemnification is sought in
connection with a claim that is brought by or in the right of the
Company and:
(A) it has been finally adjudicated by a
court of competent jurisdiction that, in connection with such
specific claim, issue or matter, Indemnitee failed to act
(x) in good faith and (y) in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company; or
(B) it has been finally adjudicated by a
court of competent jurisdiction that Indemnitee is liable to the
Company with respect to such specific claim, Indemnitee shall not
be entitled to payment of Expenses and Liabilities hereunder with
respect to such claim, issue or matter unless the Court of
Chancery or another court in which such Proceeding was brought
shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for
such Expenses and Liabilities which such court shall deem proper;
or
(C) it has been finally adjudicated by a
court of competent jurisdiction that Indemnitee is liable to the
Company for an accounting of profits made from the purchase or sale
by the Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934,
the rules and regulations promulgated thereunder and amendments
thereto or similar provisions of any federal, state or local
statutory law, Indemnitee shall not be entitled to payment of
Expenses and Liabilities hereunder.
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In addition to, and not as a limitation of, the
foregoing, the rights of indemnification of Indemnitee provided
under this Agreement shall include those rights set forth in
Sections 3, 6, 7, 8, and 12 below.
(c) Indemnitee shall be paid promptly by
the Corporation all amounts necessary to effectuate the foregoing
indemnity.
(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 Company, 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 and Liabilities, 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 Company 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 Company (and
its directors, officers, employees and agents) and Indemnitee in
connection with such event(s) and/or transaction(s).
3. Advancement of Expenses . All
reasonable Expenses incurred by or on behalf of Indemnitee shall be
advanced from time to time by the Corporation to Indemnitee within
thirty (30) days after the Corporation’s receipt of a written
request for an advance of Expenses, whether prior to or after final
disposition of a Proceeding (except to the extent that there has
been a Final Adverse Determination that Indemnitee is not entitled
to be indemnified for such Expenses), including without limitation
any Proceeding brought by or in the right of the Corporation. The
written request for an advancement of any and all Expenses under
this paragraph shall contain reasonable detail of the Expenses
incurred by Indemnitee. If required by law at the time of such
advance, Indemnitee hereby agrees to repay the amounts advanced if
it is ultimately determined that Indemnitee is not entitled to be
indemnified pursuant to the terms of this Agreement.
4. Limitations . The foregoing
indemnity and advancement of Expenses shall apply only to the
extent that Indemnitee has not been indemnified and reimbursed
pursuant to such insurance as the Corporation may maintain for
Indemnitee’s benefit, or otherwise; provided, however, that
notwithstanding the availability of such other indemnification and
reimbursement, Indemnitee may claim indemnification and advancement
of Expenses pursuant to this Agreement by assigning to the
Corporation, at its request, Indemnitee’s claims under such
insurance to the extent Indemnitee has been paid by the
Corporation.
5. Insurance and Funding . The
Corporation may purchase and maintain insurance to protect itself
and/or Indemnitee against any Expenses and Liabilities in
connection with any Proceeding to the fullest extent permitted by
applicable laws. The Corporation may create a trust fund, grant an
interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification or advancement of Expenses as
provided in this Agreement.
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6. Procedure for Determination of
Entitlement to Indemnification .
(a) Whenever Indemnitee believes that he or
she is entitled to indemnification pursuant to this Agreement,
Indemnitee shall submit a written request for indemnification to
the Corporation. Any request for indemnification shall include
sufficient documentation or information reasonably available to
Indemnitee for the determination of entitlement to indemnification.
In any event, Indemnitee shall submit such claim for
indemnification within a reasonable time not to exceed five
(5) years after any judgment, order, settlement, dismissal,
arbitration award, conviction, acceptance of a plea of nolo
contendere or its equivalent, final termination or other
disposition or partial disposition of any Proceeding, whichever is
the later date for which Indemnitee requests indemnification. The
President or the Secretary or other appropriate officer shall,
promptly upon receipt of Indemnitee’s request for
indemnification, advise the Board of Directors in writing that
Indemnitee has made such request. Determination of
Indemnitee’s entitlement to indemnification shall be made not
later than ninety (90) days after the Corporation’s
receipt of his or her written request for such
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